THE U^' W . ^ 

ITS W -^jJl^^-T ^'^ 

HISTORY AND DISCOYER^^i^^ ^V 

INCLUDING AN ACCOUNT OF "^^ " 

THE CONVENTION OF THE ESCURIAL, 



THE TREATIES AND NEGOTIATIONS 

BETWEEN 

THE UNITED STATES AND GREAT BRITAIN, 

HELD AT VARIOUS TIMES FOR THE SETTLEMENT OF 
A BOUNDARY LINE. 



AN EXAMINATION OF THE WHOLE QUESTION 

IN RESPECT TO 

FACTS AND THE LAW OF NATIONS. 



'f'ii TR AVERS TWISS, D.C.L., F.R.S., 

PROFESSOR OF POLITICAL ECONOMY IN THE UNIVERSITY OF OXFORD, 
AND ADVOCATE IN DOCTORS' COMMONS. 



NEW. YORK: 

D. APPLETON & CO., 200 BROADWAY. 

PHILADELPHIA: 
GEO. S. APPLETON, 148 CHESNUT-STREET. 

CINCINNATI:— DERBY, BRADLEY & CO., 113 MAIN - STREET. 
3IDCCCXLVI. 






By trauflfer 
5 Jeld07 






PREFACE. 

The object which the author had in view, in insti- 
tuting the accompanying inquiry into the historical 
facts and the negotiations connected with the Oregon 
Territory, was to contribute, as far as his individual 
services might avail, to the peaceful solution of the 
question at issue between the United States of Ameri- 
ca and Great Britain. He could not resist the convic- 
tion, on reading several able treatises on the subject, 
that the case of the United States had been overstated 
by her writers and negotiators ; and the perusal of Mr. 
Greenhow's Official Memoir, and subsequent History 
of Oregon and California, confirmed him in this im- 
pression, as they sought to establish more than was 
consistent with the acknowledged difficulty of a ques- 
tion, which has now been the subject of four fruitless 
negotiations. He determined, in consequence of this 
conviction, to investigate carefully the records of an- 
cient discoveries and other matters of history connected 
with the North-west coast of America, concerning 
which much contradictory statement is to be met 
with in writers of acknowledged reputation. The 
result is, the present work, which has unavoidably 
assumed a much larger bulk than was anticipated by 



VI PREFACE. 

the author when he commenced the inquiry : it is 
hoped, however, that the arrangement of the chapters 
will enable the reader to select, without difficnlty, 
those portions of the subject which lie may deem to 
be most deserving of his attention. 

The expeditions of Drake and of Gali have thus 
necessarily come under consideration ; and the views 
of the author will be found to differ, in respect to both 
these navigators, from those advanced by Mr. Green- 
how, more especially in respect to Drake. Had the 
autnor noticed at an earlier period Mr. Greenhow's 
remark in the Preface to the second edition of his His- 
tory, that he has " never deviated from the rule of not 
citing authorities at second-hand," he would have 
thought it right to apologise for attributing the incor- 
rectness of Mr. Greenhow's statements as to the re- 
spective accounts of Drake's expedition, to his having 
been misled by the authority of the article " Drake," 
in the Biographic Universelle. He would even now 
apologise, were not any other supposhion under the 
circumstances less respectful to Mr. Greenhow himself. 

In regard to Juan de Fuca, if the author could have 
supposed that in the course of the last negotiations at 
Washington, Mr. Buchanan would have pronounced 
that De Fuca's Voyage " no longer admits of reason- 
able doubt," he would have entered into a more care- 
ful analysis of Michael Lock's tale, to show that it is 
utterly irreconcileable with ascertained facts. As it is, 
however, the author trusts that enough has been said 
in the chapter on the Pretended Discoveries of the 
North west Coast, to convince the reader that both the 



TREFACE. Vll 

stories of Juan de Fuca and Maldonado*, to the latter 
of whom, Mr. Calhoun, at an earlier stage of the same 
negotiations, refers by name as the pioneer of Span- 
ish enterprise, are to be ranked with Admiral Fonte's 
account, in the class of Mythical discoveries. 

In regard to Vancouver, the author, it is hoped, will 
be pardoned for expressing an opinion, that Mr. 
Greenhow has permitted his admitted jealousy for the 
fame of his fellow-citizens to lead him to do injustice 
to Vancouver's character, and to assail it with argu- 
ments founded in one or two instances upon incorrect 
views of Vancouver's own statements. Mr. Gallatin 
expressed a very diiferent opinion of this officer, in his 
Counter-statement, during the negotiation of 1826, 
when he observes that Vancouver " had too much 
probity to alter his statement, when, on the ensuing 
day, he was informed by Captain Gray of the existence 
of the river, at the mouth of which he had been for 
several days without being able to enter it." 

The chapter on the Convention of the Escurial is 
intended to give an outline of the facts and negotia- 
tions connected with the controversy between Spain 
and Great Britain in respect to Nootka Sound, and the 
subsequent settlement of the points in dispute. The argu- 
ments which the author conceived them to furnish against 
the positions of the Commissioners of the United States, 
have been inserted, as the opportunity oifered itself, in 
the chapters on the several negotiations. The author, 

* Maldonado's pretended Voyage bears the date of 15S8. In the copy of 
Mr. Calhoun's letter, circulated on this side of the Atlantic, it is referred to 
the year 1528. 



V PREFACE. 

however, has introduced in this chapter, what appears 
to him to be a coucUisive refutation of Mr. Buchanan's 
statement, " that no sufficient evidence has been ad- 
duced that either Nootka Sound, or any other spot on 
the coast, was ever actually surrendered by Spain to 
Great Britain." 

The chapter on the Cohimbia River attempts to ad- 
just the respective claims of Heceta, Gray, and 
Broughton, to the discovery and exploration of that 
river. 

A few chapters have been next inserted on points 
of international law connected with territorial title, 
which, it was thought, might facilitate the examina- 
tion of the questions raised in the course of the nego- 
tiations by the Commissioners of Great Britain and the 
United States. They do not profess to be complete, 
but they embrace, it is believed, nearly all that is of 
importance for the reader to be famihar with. 

The chapters on the Limits of Louisiana, and the 
Treaty of Washington, were required to elucidate the 
" derivative title " of the United States. 

If the author could have anticipated the publication 
of the correspondence between Mr. Pakenham and the 
Plenipotentiaries of the United States, he would most 
probably have adopted a different arrangement in his 
review of the several negotiations, so as to avoid an 
appearance of needless repetition. His manuscript, 
however, with the exception of the two last chapters, 
was completed before the President's message reached 
this country. As the earlier sheets, however, were 
passing through the press, one or two remarks have been 



PREFACE. ^ IX 

inserted which have a hearing on the recent corres- 
pondence ; but it should be observed, that a separate 
review of each negotiation was designedly adopted, for 
the purpose of enabling the reader to appreciate more 
readily the variety of phases, which the claims of the 
United States have assumed in the course of them. 

Some observations have been made in Chapter XII. 
and other places, upon the general futility of the argu- 
ment from maps in the case of disputed territory. 
The late negotiations at Washington have furnished 
an apposite illustration of the truth of the autlior's re- 
marks. Mr. Buchanan, towards the conclusion of his 
last letter to Mr. Pakenham, addressed an argument to 
the British Minister, of the kind known to logicians as 
the argumentum ad verecundiam : — " Even British 
geographers have not doubted our title to the territory 
in dispute. There is a large and splendid globe now in 
the Department of the State, recently received from 
London, and published by Maltby & Co., manufactur- 
ers and publishers to ^ The Society for the Diffusion of 
Useful knowledge,^ which assigns this territory to the 
United States." The history, however, of this globe 
is rather curious. It was ordered of Mr. Malby (not 
Maltby) for the Department of State at Washington, 
before Mr. Everett quitted his post of Minister of the 
United States in this country. It no doubt deserves 
the commendation bestowed upon it by Mr. Buchanan, 
for Mr. Malby manufactures excellent globes ; but the 
globe sent to Washington was not made from the plates 
used on the globes published under the sanction of 
" The Society for the Diffusion of Useful Knowledge," 



X PREFACE. 

tlioiigh this is not said by way of disparagement to it. 
The Society, in its maps, has carried the boundary Hne 
west of the Rocky Mountains, along the 49th parallel 
to the Columbia River, and thence along that river to 
the sea ; but in its globes the line is not marked beyond 
the Rocky Mountains. Mr. Malby, knowing that the 
globe ordered of him was intended for the Department 
of State at Washington, was led to suppose that it 
would be more satisfactorily completed, as it was an 
American order, if he coloured in, for it is not en- 
graved, the boundary line proposed by the Commission- 
ers of the United States. The author would apologise 
for discussing so trifling a circumstance, had not the 
authorities of the United States considered the fact of 
sufficient importance to ground a serious argument 
upon it. 

In conclusion, the Author must beg pardon of the 
distinguished diplomatists in the late negotiations at 
Washington, whose arguments he has subjected to 
criticism, if he has omitted to notice several portions of 
their statements, to which they may justly attribute 
great weight. It is not from any want of respect that 
he has neglected them, but the limits of his work pre- 
cluded a fuller consideration of the subject. 

London, Jan. 23, 1846. 



CONTENTS 



CHAPTER PAOK 

I. The Oregon Territory 13 

II. The Discovery of the North-west Coast of America- 26 

III. The Discovery of the North-west Coast of America - 50 

IV. The pretended Discoveries of the North-west Coast 64 
V. The Convention of the Escurial - - - - 76 

VI. The Oregon or Columbia River - - - - 94 

VII. The Acquisition of Territory by Occupation - - 111 

VIII. Title by Discovery 115 

IX. Title by Settlement 123 

X. Derivative Title 129 

XI. Negotiations between the United States and Great 

Britain in 1818 141 

XII. The Limits of Louisiana - - - - - 153 

XIII. The Treaty of Washington 162 

XIV. Negotiations between the United States and Great 

Britain in 1823-34 178 

XV. Examination of the Claims of the United States - 189 
XVI. Negotiations between the United States and Great 

Britain in 1826-27 207 

XVII. Negotiations between the United States and Great 

Britain in 1844-45 - - - - - 224 

XVIII. Review of the General Question - - - - 249 



THE OREGON QUESTION. 



CHAPTER I. 

THE OREGON TERRITORY. 



North-west America. — Plateau of Anahuac. — Rocky Mountains. — New- 
Albion. — New Caledonia. — Oregon, or Oregan, the River of the West. 
— The Columbia River. — Extent of the Oregon Territory. — The Coun- 
try of the Columbia. — Opening of the Fur Trade in 1786. — Vancouver. 
— Straits of Anian. — Straits of Juan de Fuca. — Barclay. — Meares. — 
The American sloop Washington. — Galiano and Valdes. — Journey of 
Mackenzie in 1793. — The Tacoutche-Tesse, now Frazer's River. — 
North-west Company in 1805. — The Hudson's Bay Company in 1670. 
— The First Settlement of the North-west Company across the Rocky 
Mountains in 1806, at Frazer's Lake. — Journey of Mr. Thomson, the 
Astronomer of the North-west Compan}^ down the North Branch of the 
Columbia River, in 1811. — Expedition of Lewis and Clarke, in 1805. — 
The Missouri Fur Company, in 1808. — Their First Settlement on the 
West of the Rocky Mountains. — The Pacific Fur Company, in 1810. — 
John Jacob Astor, the Representative of it. — Astoria, established in 
181L — Dissolution of the Pacific Fur Company, in July, 1813. — Trans- 
fer of Astoria to the North-west Company, by Purchase, in October, 
1813. — Subsequent Arrival of the British Sloop-of-War, the Racoon. — 
Name of Astoria changed to Fort George. 

NoRTH-WESTERX AMERICA is divided from the other portions 
of the continent by a chain of lofty mountains, which extend 
throughout its entire length in a north-westerly direction, in 
continuation of the Mexican Andes, to the shores of the Arc- 
tic Ocean. The southern part of this chain, immediately be- 
low the parallel of 42° north latitude, is known to the Span- 
iards by the name of the Sierra Verde, and the central ridge, 
in continuation of this, as the Sierra de las Grullas ; and by 
these names they are distinguished by Humboldt in his ac- 
count of New Spain, (Essai Politique sqr la Nouvelle Espagne, 

3 



14 NORTH-WEST AMERICA. 

1. i., c. 3,) as well as in a copy of Mitchell's Map of North 
America, published in 1834. Mr. Greenhow, in his History 
of Oregon and California, states that the Anahuac Mountains 
is " the appellation most commonly applied to this part of the 
dividing chain extending south of the 40th degree of latitude 
to Mexico," but when and on what grounds that name has 
come to be so applied, he does not explain. Anahuac was 
the denomination before the Spanish conquest of that portion 
of America which lies between the 14th and 21st degrees of 
north latitude, whereas the Cordillera of the Mexican Andes 
takes the name of the Sierra Madre a little north of the par- 
allel of W, and the Sierra Madre in its turn is connected 
with the Sierra de las Grullas by an intermediate range, com- 
mencing near the parallel of 30°, termed La Sierra de los 
Mimbres. The application, indeed, of the name Anahuac to 
the entire portion of the chain which lies south of 40°, may 
have originated with those writers who have confounded 
Anahuac with New Spain ; but as the use of the word in this 
sense is incorrect, it hardly seems desirable to adopt an ap- 
pellation which is calculated to produce confusion, whilst it 
perpetuates an error, especially as there appear to be no rea- 
sonable grounds for discarding the established Spanish names. 
The plateau of Anahuac, in the proper sense of the w^ord, 
comprises the entire territory from the Isthmus of Panama to 
the 21st parallel of north latitude, so that the name of Ana- 
huac Mountains would, with more propriety, be confined to 
the portion of the Cordillera south of 21°. If this view be 
correct, the name of the Sierra Verde may be continued for 
that portion of the central range which separates the head 
waters of the Rio Bravo del Norte, which flows into the Gulf 
of Mexico, and forms the south-western boundary of Texas, 
from those of the Rio Colorado, (del Occidente,) which emp- 
ties itself into the Gulf of California. 

The Rocky Mountains, then, or, as they are frequently 
called, the Stony Mountains, will be the distinctive appella- 
tion of the portion of the great central chain which lies north 
of the parallel of 42° ; and if a general term should be re- 
quired for the entire chain to the south of this parallel, it may 
be convenient to speak of it as the Mexican Cordillera, since 
it is co-extensive wdth the present territory of the United 
States of Mexico, or else as the Mexican Andes, since the 
range is, both in a geographical and a geological point of 
view, a continuation of the South American Andes, 



ROCKY MOUNTAINS. 15 

Between this great chain of mountains and the Pacific 
Ocean a most ample territory extends, which may be regarded 
as divided into three great districts. The most southerly of 
these, of which the northern boundary line was drawn along 
the parallel of 42°, by the Treaty of Washington in 1819, be- 
long to the United States of Mexico. The most northerly, 
commencing at Behring's Straits, and of which the extreme 
southern limit was fixed at the southernmost point of Prince 
of Wales's Island in the parallel of 54° 40' north, by treaties 
concluded between Russia and the United States of America 
in 1824, and between Russia and Great Britan in 1825, forms 
a part of the dominions of Russia ; whilst the intermediate 
country is not as yet under the acknowledged sovereignty of 
any power. 

To this intermediate territory different names have been 
assigned. To the portion of the coast between the parallels 
of 43° and 48°, the British have applied the name of New 
x\lbion, since the expedition of Sir Francis Drake in 1578-80, 
and the British Government, in the instructions furnished by 
the Lords of the Admiralty, in 1776, to Captain Cook, directed 
him " to proceed to the coast of New Albion, endeavouring to 
fall in with it in the latitude of 45°. (Introduction to Captain 
Cook's Voyage to the Pacific Ocean, 4to, 1784, vol. i., p. 
xxxii.) At a later period, Vancouver gave the name of New 
Georgia to the coast between 45° and 50°, and that of New 
Hanover to the coast between 50° and 54° ; whilst to the entire 
country north of New Albion, between 48° and 56° 30', from 
the Rocky Mountains to the sea, British traders have given 
the name of New Caledonia, ever since the North-west Com- 
pany formed an establishment on the western side of the 
Rocky Mountains, in 1806. (Journal of D. W. Harmon, 
quoted by Mr. Greenhow, p. 291.) The Spanish government, 
on the other hand, in the course of the negotiations with the 
British government which ensued upon the seizure of the 
British vessels in Nootka Sound, and terminated in the Con- 
vention of the Escurial, in 1790, designated the entire terri- 
tory as " the Coast of California, in the South Sea." (Decla- 
ration of His Catholic Majesty, June 4th, transmitted to all 
the European Courts, in the Annual Register, 1790.) Of 
late it has been customary to speak of it as the Oregon terri- 
tory, or the Columbia River territory, although some writers 
confine that term to the region watered by the Oregon, or 
Columbia River, and its tributaries. 



16 OKEOON, OR OREGAN. 

The authority for the use of the word Oregon, or, more pro- 
perly speaking, Oregan, has not been clearly ascertained, but 
the majority of writers agree in referring the introduction of 
the name to Carver's Travels. Jonathan Carver, a native of 
Connecticut and a British subject, set out from Boston in 
1766, soon after the transfer of Canada to Great Britain, on 
an expedition to the regions of the Upper Mississippi, with 
the ultimate purpose of ascertaining "the breadth of that vast 
continent, which extends from the Atlantic to the Pacific 
Ocean, in its broadest part, between 43° and 46° of north 
latitude. Had I been able," he says, " to accomplish this 
task, I intended to have proposed to government to establish 
a post in some of those parts, about the Straits of Anian, which 
having been discovered by Sir Francis Drake, of course be- 
long to the English." The account of his travels, from the 
introduction to which the above extract in his own words is 
quoted, was published in London in 1778. Carver did not 
succeed in penetrating to the Pacific Ocean, but he first made 
known, or at least esta1)lished a belief in, the existence of a 
great river, termed apparently, by the nations in the interior, 
Oregon, or Oregan, the source of which he placed not far from 
the head waters of the River Missouri, "on the other side of 
the summit of the lands that divide the waters which run into 
the Gulf of Mexico from those which fall into the Pacific 
Ocean." He was led to infer, from the account of the na- 
tives, that this " Great River of the West" emptied itself near 
the Straits of Anian, (Carver's Travels, 3d edit., London, 1781, 
p. 542,) although it may be observed that the situation of the 
so-called Straits of Anian themselves was not at this time ac- 
curately fixed. Carver, however, was misled in this latter 
respect, but the description of the locality where he placed the 
source of the Oregon, seems to identify it either with the Flat- 
bow or M'Gillivray's River, or else, and perhaps more pro- 
bably, with the Flathead or Clark's River, each of which 
streams, afler pursuing a north-western course from the base 
of the Rocky Mountains, unites with a great river coming 
from the north, which ultimately empties itself into the Pacific 
Ocean in latitude 46° 18'. The name of Oregon has conse- 
quently been perpetuated in this main river, as being really 
" the Great River of the West," and by this name it is best 
known in Europe ; but in the United States of America, it is 
now more frequently spoken of as the Columl)ia River, from 
the name of the American vessel, " Tho Columbia," which 



EXTENT OF OREGON. 17 

first succeeded in passing the bar at its mouth in 1792. The 
native name, however, will not totally perish in the United 
States, for it has been embalmed in the beautiful verse of 
Bryant, whom the competent judgment of Mr. Washington 
Irving has pronounced to be amongst the most distinguished 
of American poets : — 

" Take the wings 
Of morning, and the Barcan desert pierce, 
Or lose thyself in the continuous woods 
Where rolls the Oregon, and hears no sound 
Save his own dashings." 

If we adopt the more extensive use of the term Oregon ter- 
ritory, as applied to the entire country intermediate between 
the dominions of Russia and Mexico respectively, its bounda- 
ries will be the Rocky Mountains on the east, the Pacific 
Ocean on the west, the parallel of 54° 40' N. L. on the north, 
and that of 42° N. L. on the south. Its length will thus com- 
prise 12 degrees 40 minutes of latitude, or about 760 geo- 
graphical miles. Its breadth is not so easily determined, as 
the Rocky Mountains do not run parallel with the coast, but 
trend from south-east to north-west. The greatest breadth, 
however, appears to comprise about 1 4 degrees of longitude, 
and the least about 8 degrees ; so that we may take 11 de- 
grees, or 660 geographical miles, as the average breadth. 
The entire superficies would thus amount to 501,600 geo- 
graphical square miles, equal to 663,366 English miles. If, 
on the other hand, we adopt the narrower use of the term, 
and accept the north-western limit which Mr. Greenhow, in 
his second edition of his History of Oregon and California, 
has marked out for " the country of the Columbia," namely, 
the range of mountains which stretches north-eastward from 
the eastern extremity of the Straits of Fuca, about 400 miles, 
to the Rocky Mountains, separating the waters of the Colum- 
bia from those of Frazer's river, it will still include, upon his 
authority, not less than 400,000 square miles in superficial 
extent, v/hich is more than double that of France, and nearly 
half of all the states of the Federal Union. "Its southern- 
most points" in this limited extent " are in the same latitudes 
with Boston and with Florence ; whilst its northernmost cor- 
respond with the northern extremities of Newfoundland, and 
with the southern shores of the Baltic Sea." 

Such are the geographical limits of the Oregon territory, in 
its widest. and in its narrowest extent. The Indian hunter 



18 FUR TRADE. 

roamed throughout it, undisturbed by civilised man, till near 
the conclusion of the last century, when Captain James King, 
on his return from the expedition which proved so ftital to 
Captain Cook, made known the high prices which the furs of 
the sea otter commanded in the markets of China, and there- 
by attracted the attention of Europeans to it. The enter- 
prise of British merchants was, in consequence of Captain 
King's suggestion, directed to the opening of a fur trade be- 
tween the native hunters along the north-west coast of Ame- 
rica, and the Chinese, as early as 1786. The attempt of the 
Spaniards to suppress this trade by the seizure of the vessels 
engaged in it, in 1789, led to the dispute between the crowns 
of Spain and Great Britain, in respect of the claim to exclu- 
sive sovereignty asserted by the former power over the port 
of Nootka and the adjacent latitudes, which was brought to a 
close by the Convention of the Escurial in 1790. 

The European merchants, however, who engaged in this 
lucrative branch of commerce, confined their visits to stations 
on the coasts, where the natives brought from the interior the 
produce of their hunting expeditions ; and even in respect of 
the coast itself, very little accurate information was possessed 
by Europeans, before Vancouver's survey. Vancouver, as is 
well known, was despatched in 1791 by the British govern- 
ment to superintend, on the part of Great Britain, the execu- 
tion of the Convention of the Escurial, and he was at the 
same time instructed to survey the coast from 35° to 60°, with 
a view to ascertain in what parts civilised nations had made 
settlements, and likewise to determine whether or not any 
effective water communication, available for commercial pur- 
poses, existed in those parts between the Atlantic and Pacific 
Oceans. 

The popular belief in the existence of a channel, termed 
the Straits of xVnian, connecting the waters of the Pacific with 
those of the Atlantic Ocean, in about the 58th or 60th parallel 
of latitude, through which Caspar de Cortereal, a Portuguese 
navigator, was reported to have sailed in 1500, had caused 
many voyages to be made along the coast on either side of 
North America during the 16th and 17th centuries, and the 
exaggerated accounts of the favouralde results of these 
voyages had promoted the progress of geograj)hical discovery 
by stimulating fresh expeditions. In the I7th century, a nar- 
rative was published ])y Purchas, in his " Pilgrims," profess- 
ing that a Greek pilot, commonly called Juan de Fuca, in the 



STRAITS OF JUAN DE FUCA. 19 

service of the Spaniards, had informed Michael Lock the 
elder, whilst he was sojourning at Venice in 1596, that he 
had discovered, in 1592, the outlet of the Straits of Anian, in 
the Pacific Ocean, between 47° and 48°, and had sailed 
through it into the North Sea. The attention of subsequent 
navigators was for a long time directed in vain to the redis- 
covery of this supposed passage. The Spanish expedition un- 
der Heceta, in 1775, and the British under Cook, in 1778, had 
both equally failed in discovering any corresponding inlet in 
the north-west coast, doubtless, amongst other reasons, be- 
cause it had been placed by the author of the tale between 
the parallels of 47° and 48°, where no strait existed. In 
1787, however, the mouth of a strait was descried a little fur- 
ther northward, between 48° and 49°, by Captain Barclay, of 
the Imperial Eagle, and the entrance was explored in the 
following year by Captain Meares, in the Felice, who per- 
petuated the memory of Michael Lock's Greek pilot, by giv- 
ing it the name of the Straits of Juan de Fuca. Meares, in 
his observations on a north-west passage, p. Ivi., prefixed to 
his Voyage, published in 1790, states that the American mer- 
chant sloop the Washington, upon the knowledge which he 
communicated, penetrated the straits of Fuca in the autumn 
of 1789, "as far as the longitude of 237° east of Greenwich," 
(123° west,) and came out into the Pacific through the passage 
north of Queen Charlotte's Island. Vancouver's attention 
was directed, in consequence of Captain Meares' report, to 
the especial examination of this strait, and it was surveyed 
by him, with the rest of the coast, in a most complete and 
effectual manner. A Spanish expedition, under Galiano and 
Valdes, was engaged about the same time upon the same ob- 
ject, so that from this period, i. e., the concluding decade of the 
last century, the coast of Oregon may be considered to have 
been sufficiently well known. 

The interior, however, of the country, had remained hither- 
to unexplored, and no white man seems ever to have crossed 
the Rocky Mountains prior to Alexander Mackenzie, in 1793. 
Having ascended the Unjigah, or Peace River, from the Atha- 
basca Lake, on the eastern side of the Rocky Mountains, to 
one of its sources in 54° 24', Mackenzie embarked upon a 
river flowing from the western base of the mountains, called, 
by the natives, Tacoutche-Tesse. This was generally sup- 
posed to be the northernmost branch of the Columbia river, 
till it was traced, in 1812, to the Gulf of Georgia, where it 



20 ^•01lTH-WEST COMl'AKY. 

empties itself in 49° latitude, and was thenceforth named Fra- 
zer's river. Mackenzie, having descended this river for about 
250 miles, struck across the country westward, and reached 
the sea in 52° 20', at an inlet which had been surveyed a 
short time before by Vancouver, and had been named by him 
Cascade Canal. Xliis icas the first exj)edi(lon of civilised men 
through the country west of the Rochj Mountains. It did not 
lead to any immediate result in the way of settlement, though 
it paved the way by contributing, in conjunction with Van- 
couver's survey, to confirm the conclusion at which Captain 
Cook had arrived, that the American continent extended, in 
an uninterrupted line, north-westward to Behring's Straits. 

The result of Mackenzie's discoveries was to open a wide 
field to the westward for the enterprise of British merchants 
engaged in the fur trade ; and thus we find a settlement in 
this extensive district made, not long after the publication of 
his voyage, by the agents of the North-west Company. This 
great association had been growing up since 1784, upon the 
wreck of the French Canadian fur trade, and gradually ab- 
sorbed into itself all the minor companies. It did not, how- 
ever, obtain its complete organisation till 1805, when it soon 
became a most formidable rival to the Hudson's Bay Com- 
pany, which had been chartered as early as 1670, and had all 
but succeeded in monopolising the entire fur trade of North 
America, after the transfer of Canada to Great Britain. Th© 
Hudson's Bay Company, with the characteristic security of a 
chartered company, had confined their posts to the shores of 
the ample territory which had been granted to them by the 
charter of Charles II., and left the task of procuring furs to 
the enterprise of the native hunters. The practice of the 
hunters was to suspend their chase during the summer months, 
"when the fur is of inferior quality, and the animals rear their 
young, and to descend by the lakes and rivers of the interior 
to the established marts of the company, with the produce of 
the past winter's campaign. The North-west Company 
adopted a totally different system. They dispatched their 
servants into the very recesses of the wilderness, to bargain 
with the native hunters at their homes. They established 
wintering partners in the interior of the country, to superin- 
tend the intercourse with the various tribes of Indians, and 
employed at one time not fewer than 2,000 voijageurs or boat- 
men. The natives being thus no longer called away from 
their pursuit of the beaver and other animals, by the neces- 



3IK. Thomson's mission. 21 

sity of resorting as heretofore to the factories of the Hudson's 
Bay Company, continued on their hunting grounds during the 
whole year, and were tempted to kill the cub and full-grown 
animal alike, and thus to anticipate the supply of future years. 
As the nearer hunting grounds became exhausted, the jSlorth- 
west Company advanced their stations westwardly into re- 
gions previously unexplored, and, in 3 806, they pushed for- 
ward a post across the Rocky Mountains, through the passage 
where the Peace River descends through a deep chasm in the 
chain, and formed a trading establishment on a lake now 
called Frazer's Lake, situated in 54° N. L. " This,^' accord- 
ing to Mr. Greenhow, " was the first settlement or 'post of any 
kind made bi/ British subjects west of the Rocky Mountains. '' 
It may be observed, likewise, that it was the first settlement 
made on the west of the Rocky Mountains, by civilised men. 
It is from this period, according to Mr. Harmon, who was a 
partner in the company, and the superintendent of its trade 
on the western side of the Rocky Mountains, that the name 
of New Caledonia had been used to designate the northern 
portion of the Oregon territory. 

Other posts were soon afterwards formed amongst the Flat, 
head and Kootanie tribes on the head waters or main branch 
of the Columbia; and Mr. David Thomson, the astronomer 
of the North-west Company, descended with a party to the 
mouth of the Columbia in 1811. Mr. Thomson's mission, 
according to Mr. Greenhow, was expressly intended to an- 
ticipate the Pacific Fur Company in the occupation of a post 
at the mouth of the Columbia. Such, indeed, may have been 
the ultimate intention, but the survey of the banks of the 
river, and the establishment of posts along it, was no less the 
object of it. Mr. Thomson was highly competent to con- 
duct such an expedition, as may be inferred from the fact that 
he had been employed in 1798 to determine the latitude of 
the northernmost source of the Mississippi, and had on that 
occasion shown the impossibility of drawing the boundary 
line betv/een the United States of America and Canada, due 
west from the Lake of the Woods to the Mississippi, as had 
been stipulated in the second article of the treaty of 1783. 
Mr. Thomson and his followers were, according to Mr. Green- 
how, the first ichite persons u-ho navigated the northern branch 
of the Columbia, or traversed any part of the country drained 
by it. 

' The ITnited States of America had, in the mean time, not 

2* 



22 UNITED states' EXPEDITION. 

remained inattentive to their own future commercial interests 
in this quarter, as they had despatched from the southern side 
an exphjring party across the Rocky Mountains, almost imme- 
diately after their purchase of Louisiana, in 1803. On this 
occasion, Mr. Jefferson, then President of the United States, 
commissioned Captains Lewis and Clarke " to explore the 
River Missouri and its principal branches to their sources, 
and then to seek and trace to its termination in the Pacific 
some stream, whether the Columbia, the Oregon, the Colo- 
rado, or any other, which might offer the most direct and 
practicable water communication across the continent for the 
purposes of commerce." The party succeeded in passing the 
Rocky Mountains towards the end of September, 1805, and 
after following, by the advice of their native guides, the Koos- 
kooskee River, which they reached in the latitude 43° 34', to 
its junction with the principal southern tributary of the Great 
River of the West, they gave the name of Lewis to this tribu- 
tary. Having in seven days afterwards reached the main 
stream, they traced it down to the Pacific Ocean, where it 
was found to empty itself, in latitude 46° 18'. They thus 
identified the Oregon, or Great River of the West of Carver, 
with the river to whose outlet Captain Gray had given the 
name of his vessel, the Columbia, in 1792 ; and having passed 
the winter amongst the Clatsop Indians, in an encampment 
on the south side of the river, not very far from its mouth, 
which they called Fort Clatsop, they commenced, with the 
approach of spring, the ascent of the Columbia on their re- 
turn homeward. After reaching the Kooskooskee, they pur- 
sued a course eastward till they arrived at a stream, to which 
they gave the name of Clarke, as considering it to be the up- 
per part of the main river, which they had previously called 
Clarke at its confluence with the Lewis. Here they separated, 
at about the 47th parallel of latitude. Captain Lewis then 
struck across the country, northwards, to the Rocky Moun- 
tains, and crossed them, so as to reach the head waters of 
the Maria River, which empties itself into the Missouri just 
Ijclow the Falls. Captain Clarke, on the other hand, followed 
the Clarke River towards its sources, in a southward direc- 
tion, and then crossed through a gap in the Rocky Mountains, 
so as to descend the Yellowstone River to the Missouri. Roth 
parties united once more on tlie l)anks of the Missouri, and 
arrived in safety at St. Louis in Sej)tember, 180(). 

The reports of this expedition seem to have first directed 



MISSOURI FUR COMPANY. 23 

the attention of traders in the United States to the hunting 
grounds of Oregon. The Missouri Fur Company was formed 
in 1808, and Mr. Henry, one of its agents, established a trad- 
ing post on a branch of the Lewis River, the great southern 
arm of the Columbia. This seems to have been the earliest es- 
tahlishment of any kind made hy citizens of the United States 
west of the Rocky Mountains, The hostility, however, of the 
natives, combined with the difficulty of procuring supplies, ob- 
liged Mr. Henry to abandon it in 1810. The Pacific Fur 
Company was formed about this time at New- York, with the 
object of monopolising, if possible, the commerce in furs be- 
tween China and the north-west coast of America. The head 
of this association was John Jacob Astor, a native of Heidel- 
berg, who had emigrated to the United States, and had there 
amassed very considerable wealth by extensive speculations 
in the fur trade. He had already obtained a charter from the 
Legislature of New- York in 1809, incorporating a company, 
under the name of the American Fur Company, to compete 
with the Mackinaw Company of Canada, within the Atlantic 
States, of which he was himself the real representative, ac- 
cording to his biographer, Mr. Washington Irving, his board 
of directors being merely a nominal body. In a similar man- 
ner, Mr. Astor himself writes to Mr. Adams in 1823, (Letter 
from J. J. Astor, of New- York, to the Hon. J. Q. Adams, 
Secretary of State of the United States, amongst the proofs and 
illustrations in the appendix to Mr. Greenhow's work,) "You 
will observe that the name of the Pacific Fur Company is 
made use of at the commencement of the arrangements for 
this undertaking. I preferred to have it appear as the busi- 
ness of a company rather than of an individual, and several 
of the gentlemen engaged, Mr. Hunt, Mr. Crooks, Mr. 
M'Kay, M'Dougal, Stuart, &c., Avere in effect to be interested 
as partners in the undertaking, so far as respected the profit 
which might arise, but the means were furnished by me, and 
the property w^as solely mine, and I sustained the loss." Mr. 
Astor engaged, on this understanding, nine partners in his 
scheme, of whom six were Scotchmen, who had all been in 
the service of the North-west Company, and three were citi- 
zens of the United States. He himself had become natural- 
ised in the United States, but of his Scotch partners the three 
at least who first joined him seem to have had no intention of 
laying aside their national character, as, previously to signing, 
ill 1810, -the articles of agreement with Mr. Astor, they obtain- 



24 



ASTORIA. 



ed from Mr. Jackson, the British Minister at Washington, an 
assurance that " in case of a war between the two nations, 
they would be respected as British subjects and merchants." 

Mr. Astor, having at hist arranged his plans, despatched in 
September, 1810, four of his partners, with twenty-seven sub- 
ordinate officers and servants, ail British sulijects, in the ship 
Tonquin, commanded by Jonathan Thorne, a lieutenant in 
the United States navy, to establish a settlement at the mouth 
of the Columbia river. They arrived at their destination in 
March, 1811, and erected in a short time a factory or fort on 
the south side of the river, about ten miles from the mouth, to 
which the name of Astoria was given. The Tonquin pro- 
ceeded in June on a trading voyage to the northward, and was 
destroyed with her crew by the Indians in the Bay of Clyo- 
quot, near the entrance of the Strait of Fuca. 

In the following month of July, Mr. Thomson, the agent of 
the North-west Company, to whom allusion has already been 
made, descended the northern branch. of the Columbia, and 
visited the settlement at the mouth of the Columbia. He was 
received with friendly hospitality by his old companion, Mr. 
M'Dougal, who was the superintendent, and shortly took his 
departure again, Mr. Stuart, one of the partners, accompany- 
ing him up the river as far as its junction with the Okinagan, 
where he remained during the winter, collecting furs from 
the natives. The factory at Astoria, in the mean time, was 
reinforced in January, 1812, by a further detachment of per- 
sons in the service of the Pacific Fur Company, who had set 
out overland early in 1811, and after sufibring extreme hard- 
ships, and losing several of their number, at last made their 
way, in separate parties, to the mouth of the Columljia. A 
third detachment was brought by the ship Beaver, in the fol- 
lowing May. All the partners of the Company, exclusive of 
Mr. Astor, had now been despatched to the scene of their 
future trading operations. Mr. Mackay, who had accompa- 
nied Mackenzie in his expedition to the Pacific in 1793, was 
alone wanting to their number : he had unfortunately proceed- 
ed northwards with Captain Thorne, in order to make ar- 
rangements with the Russians, and was involved in the com- 
mon fate of the crew of the Tonquin. 

The circumstances, however, of this estal^lishment under- 
went a great change upon the declaration of war by the Unit- 
ed States against Great Britain in June, 1812. Tidings of 
this event reached the factory in January, 1813. In the mean 



DISSOLUTION OF THE C03IPANY. 25 

time Mr. Hunt, the chief agent of the Company, had sailed 
from Astoria, in the ship Beaver, in August, 1812, to make 
arrangements for the trade along the northern coast ; whilst 
Mr. IM'Dougal, the senior partner, with Mr. Mackenzie and 
others, superintended the factory. They were soon informed 
of the success of the British arms, and of the blockade of the 
ports of the United States, by Messrs. M'Tavish and Laroque, 
partners of the North-w^est Company, who visited Astoria 
early in 1813, with a small detachment of persons in the em- 
ployment of that company, and opened negotiations with 
M'Dougal and Mackenzie for the dissolution of the Pacific Fur 
Company, and the abandonment of the establishment at Asto- 
ria. The association was in consequence formally dissolved 
in July, 1813 ; and on the 16th of October following, an 
agreement was executed between Messrs. M'Tavish and 
John Stuart, on the part of the North-west Company, and 
Messrs. M'Dougal, Mackenzie, David Stuart, and Clarke, on 
the part of the Pacific Fur Company, by which all the estab- 
lishments, fuis, and stock in hand of the late Pacific Fur Com- 
pany were transferred to the North-west Company, at a given 
valuation, which produced, according to Mr. Greenhow, a 
sum total of 58,000 dollars. It may be observed, that four 
partners only of the Pacific Fur Company appear to have been 
parties to this agreement ; but they constituted the entire 
body which remained at Astoria, Mr. Hunt, being absent, as 
already stated, and Messrs Crooks, Maciellan, and R. Stuart, 
having returned over-land to New- York in the spring of 1813. 

The bargain had hardly been concluded when the British 
sloop of war, the Racoon, under the command of Capt. Black, 
entered the Columbia river, with the express purpose of de- 
stroying the settlement at Astoria ; but the establishment had 
previously become the property of the North-west Company, 
and was in the hands of their agents. All that remained for 
Captain Black to perform, was to hoist the British ensign over 
the factory, the name of which he changed to Fort George. 

Mr. M'Dougal and the majority of the persons who had 
been employed by the Pacific Fur Company, passed into the 
service of the North-west Company ; and the agents of the 
latter body, with the aid of supplies from England, which ar- 
rived in 1814, were enabled to extend the field of their opera- 
tions, and to establi.-;h themselves firmly in the country, un- 
disturbed by any rivals. 



2G 



CHAPTER II. 



ON THE DISCOVERY OF THE NORTH-WEST COAST OF 
AMERICA. 

Voyage of Francisco dc Ulloa, in 1539. — Cabrillo, in 1512. — Drake, in 
1577-80. — The Famous Voyage. — The World Encompassed. — Nufio 
da Silva. — Edward Clifte. — Francis Pretty, not the Author of the Fa- 
mous Voyage. — Fleurieu. — Pretty the Author of the Voyage of Caven- 
disli. — Purchas' Pilgrims. — Notes of Fletcher. — World Encompassed, 
published in 1 G28. — Mr. Grcenhow's Mistake in respect to the World 
Encompassed and the Famous Voyage. — Agreement between the 
World Encompassed and the Narrative of Da Silva. — Fletcher's Ma- 
nuscript in the Sloane Collection of the British Museum. — Furthest 
Limit soutiiward of Drake's Voyage. — Northern Limit 43'-' and up- 
wards by the Famous Voyage, 48° by the World Encompassed. — The 
latter confirmed by Stow, the Annalist, in 1592, and by John Davis, 
the Navigator, in 1595, and by Sir W. Monson in his Naval Tracts. — 
Camden's Life of Elizabeth. — Dr. Johnson's Life of Sir F. Drake. — 
Flcurieu's Introduction to Marchand's Voyage. — Introduction to the 
Voyage of Galiano and Valdds. — Alexander von Humboldt's New 
Spain. 

The Spaniards justly lay claim to the discovery of a consi- 
derable portion of the north-west coast of America. An ex- 
pedition from Acapulco under Francisco de Ulloa, in 1539, first 
determined California to be a peninsula, by exploring the 
CJidf of California from La Paz to its northern extremity. The 
chart, which Domingo del Castillo, the pilot of Ulloa, drew up 
as the result of this voyage, differs very slightly, according to 
Alexander von Humboldt, from those of the present day. Ul- 
loa subsequently exj)lored the western coast of California. Of 
the extent of his discoveries on this occasion there are contra- 
dictory accounts, but the extreme limit assigned to them does 
not reach further north than (^ape Engano, in 30*^ north lati- 
tude. 

In the spring of the following year, 1542, two vessels were 
despatched under Juan Rodriguez Cabrillo from the port of 
iXavidad. lie examined the coast of California, as far north 
as 37° 10', when he was driven back by a storm to the is- 
hmd of tSan Bernardo, in 31^, where he died. Ills pilot, 



CABRILLO'S VOYAGE. 27 

Bartoleme Ferrelo. continued his course northwards after the 
death of his commander. The most northern point of land 
mentioned in the accounts of the expedition which have been 
preserved, was Cabo de Fortunas, placed by Ferrelo in 41*^, 
which is supposed by Mr. Greenhow to have been the head- 
land in 40° 20', to which the name of C. Mendocino was 
given, in honor of the viceroy, Mendoza. Other authors, 
however, whose opinion is entitled to consideration, maintain 
that Ferrelo discovered Cape Blanco in 43°, to which Van- 
couver subsequently gave the name of Cape Orford. (Hum- 
boldt, Essai Politique sur la Nouvelle Espagne, 1. iii., c. viii. 
Introduccion al Relacion del Viage hecho por las Goletas Su- 
tily Mexicana en el aiio de 1792.) 

The Bull of Pope Alexander VI., as is well known, gave to 
Ferdinand and Isabella of Spain all the New World to the 
westward of a meridian line drawn a hundred leagues west of 
the x\zores. When England, however, shook ofl'the yoke of 
the Papacy, she refused to admit the validity of Spanish titles 
when based only on such concessions. Elizabeth, for in- 
stance, expressly refused to acknowledge " any title in the 
Spaniards by donation of the Bishop of Rome, to places of 
which they were not in actual possession, and she did not un- 
derstand why, therefore, either her subjects, or those of any 
other European prince, should be debarred from traffic in the 
Indies." In accordance with such a policy, Sir Francis 
Drake obtained, through the interest of Sir Christopher Hat- 
ton, the vice-chamberlain of the Queen, her approval of an 
expedition projected by him into the South Sea. He set sail 
from Plymouth in 1577, passed through the Straits of Magel- 
lan in the autumn of 1578, and ravaged the coast of Mexico in 
the spring of 1579. Being justly apprehensive that the Span- 
iards would intercept him if he should attempt to re-pass Ma- 
gellan's Straits with his rich booty, and being likewise reluct- 
ant to encounter again the dangers of that channel, he deter- 
mined to attempt the discovery of a north-east passage from 
the South Sea into the Atlantic, by the reported Straits of 
Anian. 

There are two accounts, professedly complete, of Drake's 
Voyage. The earliest of these first occurs in Hakluyt's Col- 
lection of Voyages, published in 1589, and is entitled " The 
Famous Voyage of Sir Francis Dral^e into the South Sea, and 
there-hence about the whole Globe of the Earth, begun in the 
yeere of ©ur Lord, 1577." It was re-published, by Ilakluyt, 



28 dijake's voyage. 

with sonic alterations, in his subsequent edition of 1598-lGOO, 
and may be most readily referred to in the fourth volume of 
the reprint of this latter edition, published in 1811. The 
other account is intitled " The World Encompassed by Sir 
Francis Drake, collected out of the notes of Mr. Francis Flet- 
cher, Preacher in this employment, and compared with divers 
others' notes that went in the same Voyage." This work 
was first published in 1628, by Nicholas Bourne, and " sold 
at his shop at the Ro3^al Exchange." It appears to have been 
compiled by Francis Drake, the nephew of the circumnaviga- 
tor, as a dedication " to the truly noble Robert Earl of War- 
wick" is prefixed, whh his name attached to it. It will be 
found most readily in the second volume of the Harleian col- 
lection of voyages. There are also to be found in Hakluyt's 
fourth volume, two independent, but unfortunately imperfect, 
narratives, one by Nuno da Silva, the Portuguese pilot, who 
was pressed by Sir F. Drake into his service at St. Jago, one 
of the Cape Verde islands, and discharged at Guatulco, where 
his account terminates ; the other by Edward Clifie, a mari- 
ner on board the ship Elizabeth, commanded by Mr. John 
Winter, one of Drake's squadron, M'hich parted company from 
him on the west coast of South America, immediately after 
passing through the Straits of Magellan. The Elizabeth 
succeeded in re-passing the straits, and arrived safe at Ilfra- 
combe on June 2d, 1579 ; and Mr. Cliffe's narrative, being 
confined to the voyage of his own ship, is consequently the 
least complete of all, in respect to Drake's adventures. 

It is a disputed point, whether Drake, in his attempt to find 
a passage to the Atlantic, by the north of California, reached 
the latitude of 48° or 43°. The I'amous Voyage, is the ac- 
count, on which the advocates for the lower latitude of 43° re- 
ly. The World Encompassed, supported by Stow the anna- 
list, and two independent naval authorities, cotemporaries of 
Sir F. Drake, is quoted in favour of the higher latitude of 4S°. 
Before examining the interval evidence of the two accounts, 
it may be as well to consider the authority which is due to 
them from external circumstances, as Mr. Greenhow's ac- 
count of the two works is calculated to mislead the judgment 
of the reader in this respect. 

Mr. Creenhow, (p. 73,) in referring to the Famous Voyage, 
says that it was " written by Francis Pretty, one of the crew 
of Drake's vessel, at the request of Ilakluyt, and published by 
him in 1589. It is a plain and succinct account of what the 



"the FA3I0US VOYAGE." 29 

writer saw, or believed to have occurred during the voyage, 
and bears all the marks of truth and authenticity." 

This statement could not but excite some surprise, as the 
Famous Voyage has no author's name attached to it, either in 
the first edition of 1589, or in any of the later editions of Hak- 
luyt, the more so because Hakluyt himself, in his Address to 
the favorable reader, prefixed to the edition of 1589, leads us 
to suppose that he was himself the author of the work. " For 
the conclusion of all, the memorable voyage of Master Thomas 
Candish into the South Sea, and from thence about the Globe 
of the Earth doth satisfie me, and I doubt not but will fully 
content thee, which as in time it is later than that of Sir F. 
Drake, so in relation of the Philippines, Japan, China, and the 
isle of St. Helena, it is more particular and exact ; and there- 
fore the v/ant of the first made by Sir Francis Drake will be 
the lesse ; wherem I must confess to have taken more than ordi- 
7iari/ paines, meaning to have inserted it in this worke ; but be- 
ing of late (contrary to my expectation,) seriously dealt with- 
all, not to anticipate or prevent another man's paines and 
charge in drawing all the services of that worthie knight into 
one volume, I have yielded unto those my friends which press- 
ed me in the matter, referring the further knowledge of his 
proceedings to those intended discourses." 

Hakluyt, however, appears to have had the narrative pri- 
vately printed, and, contrary to the intention which he enter- 
tained at the time when he wrote his preface, and compiled 
his table of contents, and the index of his first edition, in nei- 
ther of which is there any reference to the Famous Voyage, he 
has inserted the Famous Voyage between pages 643 and 644, 
evidently as an interpolation. It is nowhere stated that any 
copy of this edition exists, in which this interpolation does not 
occur. It is alluded to by Lowndes in his Bibliographical 
Manual, vol. ii., p. 853, art. " Hakluyt." It is printed appa- 
rently on the same kind of paper, with the same kind of ink, 
and in the same kind of type with the rest of the work, but the 
signatures at the bottom of the pages, by which term are 
meant the numbers which are placed on the sheets for the 
printer's guidance, do not correspond with the general order 
of the signatures of the work. This fact, combined with the 
circumstance that the pages are not numbered, furnishes a 
strong presumption that it was printed subsequently to the 
rest of the work. On the other hand there is evidence that it 
was printed to bind up with the rest, from the circumstance 



30 FRANCIS PRETTY. 

that at the bottom of the last page the word " Instructions" is 
printed to correspond with the lirst word at the top of p. G44, 
being the title of the next treatise — " Instructions given by the 
Honorable the Lords of the Counsell to Edward Fenton, Esq. 
for tlie order to be observed in the voyage recommended to 
him for the East Indies, and Cathay, April 9, 1582." 

It can hardly be doubted that this account is the narrative 
about which llakluyt himself "had taken more than ordinary 
paines." Hakluyt, as is well known, was a student of Christ 
Church, Oxford, who like his imitator Purchas, was imbued 
with a strong natural bias towards geographical studies, and 
himself compiled many of the narratives which his collection 
contained. 

This inference as to the authorship of the Famous Voyage, 
drawn from the allusion in Hakluyt's preface to the work, will 
probably appear to many minds more justifiable, if the claim 
set up in behalf of Francis Pretty can be shown to be utterly 
without foundation. It may be as well, therefore, to dispose 
of this at once. What may have been Mr. Greenhow's au- 
thority it would be difficult to say, though it may be -conjec- 
tured, from another circumstance which will be stated below, 
that he has been misled by an incorrect article on Sir Fran- 
cis Drake in the Biographic Universelle. M. Eyries, the 
writer of this article, refers to Fleurieu as his authority. Fleu- 
rieu, however, who was a distinguished French hydrographer, 
and edited, in Paris, in the year VIII. (1800) a work intitled 
" Voyage autour du Monde, par Eticnne Marchand," with 
which he published some observations of his own, intitled 
" Recherches sur les terres de Drake," enumerates brielly in 
the latter work the different accounts of Drake's voyage, but 
he no where mentions the name of the author of the Famous 
Voyage. Fleurieu's information, indeed, was not in every 
respect accurate, as he states that the edition of Hakluyt which 
contained the Famous Voyage " ne parut a Londres qu'en 
1600." What he says, however, of the author, is comprised 
in a short note to this effect : — " Le gentilhomme Picard, (em- 
ploye sur I'escadre de Drake,) auteur de cette relation, en ay- 
ant remis une copie au Baron de St. Simon, Seigneur de 
Courtomer, celui-ci engagea Francois de Louvencourt, Seig- 
neur de Vauchelles, a en faire un extrait en Francais sous le 
titre do ' le Voyage Curieux faict autour du Monde par Fran- 
cois Drach, Amiral d'Angleterre,' qui fut imprime chez Ges- 
selin, Paris, 1627, en Bvo." 



"voyage de drach." 31 

It might be supposed from this statement, that the work of 
M. de Louvencourt would disclose the name of the gentleman 
of Picardy, who had been the companion of Drake ; but on re- 
ferring to the edition just cited of the French translation, the 
only allusion to Drake's companion which is to be found in 
the work, occurs in a few words forming part of the dedica- 
tion to M. de St. Simon : — " Or, Monsieur, je le vous dedie, 
parceque c'est vous que m'aviez donne, m'ayant fait entendre, 
que vous I'aviez eu d'un de vos sujets de Courtomer, qui a fait 
le meme voyage avec ce seigneur." Nothing further can 
safely be inferred from this, than that M. de St Simon receiv- 
ed the English copy, which M. de Louvencourt made use of, 
from one of his vassals who had accompanied Drake in his 
expedition ; but whether this Picard subject of the lord of 
Courtomer was the author of the narrative, does not appear 
from the meagre dedication, which seems to have been the 
basis upon which Fleurieu's statement was founded. 

Fleurieu refers to the Famous Voyage as printed in duode- 
cimo, in London, in the year 1600. This edition, however, 
cannot be traced in the catalogue of the British Museum or 
the Bodleian Library, nor does Watt refer to it in his Biblio- 
theca Britannica : but Fleurieu may have had authority for his 
statement, though the size of the edition is at least suspicious. 
Even the French translation of 1627, of which there was an 
earlier edition in 1613, apparently unknown to Fleurieu, is in 
8vo, and an English edition of the Famous Voyage, slightly 
modified, which was published in London in 1752, and may 
be found in the British Museum, is a very mean pamphlet, 
though in 8vo. The separate editions likewise of Drake's 
other voyages which are to be met with in public libraries 
are in small quarto, so that there would be no argument from 
analogy in favor of an edition in 12mo. The fact, however, 
of its having disappeared, might perhaps be urged as a sign of 
the insignificance of the edition. 

It is very immaterial, even if Fleurieu has hazarded a hasty 
statement in respect to there having been a separate edition 
of the Famous Voyage as early as 1600. Thus much, at least, 
is certain, that Fleurieu is incorrect in stating that the edition 
of Hakluyt, in which it was inserted, did not appear before 
1600 ; for a careful comparison between the French transla- 
tion, and the respective English editions of 1589 and 1600, 
furnishes conclusive evidence that M. de Louvencourt's trans- 
lation was made from the narrative in the edition of 1589. 



32 FLEURIEU. 

Two examples will sufTice. The edition of 15S9 gives 55^V 
degrees of southern latitude, and 42 degrees of northern lati- 
tude, as the extreme limits of Drake's voyage towards the two 
poles, "which the French translation follows ; Avhilst the edi- 
tion of 1600 gives 57 J degrees of southern latitude, and 43 
degrees of northern latitude, as the southern and northern ex- 
tremes. There can therefore be little doubt that the work, 
which M. de Louvencourt translated, was the narrative about 
which Hakluyt himself had taken no ordinary pains : and 
which he printed separately from his general collection of 
voyages, so that it might be circulated privately, though he 
incorporated it into the work after it was completed. 

So far, indeed, are we from finding any good authority for 
attributing the authorship of the Famous Voyage of Sir Fran- 
cis Drake to Francis Pretty, one of his crew, as unhesitatingly 
advanced by Mr. Greenhow, that, on the contrary there is the 
strongest negative evidence that it was not written by a per- 
son of that name, unless we are prepared to admit that there 
were two individuals of that name, the one a native of Picar- 
dy, and vassal of the Sieur de Courtomer, the other an English 
gentleman, " of Ey in SufFolke j" the one a companion of 
Drake, in his voyage round the world in 1577-90, the other a 
companion of Cavendish, in his voyage round the world in 
1586-88 ; the one the author of the Famous Voyage of Sir 
Francis Drake, the other the writer of the Admirable and Pros- 
perous Voyage of the Worshipful Master Thomas Candish. 

Hakluyt, in his edition of 1589, gave merely " The Worthy 
and Famous Voyage of Master Thomas Candishe, made round 
about the Globe of the Earth in the space of two yeeres, and 
lesse than two months, begon in the yeere 1586," which is 
subscribed at the end, "written by N. H. ;" but in his edi- 
tion of 1600, he published a fuller and more complete narra- 
tive, entitled, " The Admirable and Prosperous Voyage of the 
Worshipfull Master Thomas Candish, of Frimley, in the Coun- 
tie of Suffolke, Esquire, into the South Sea, and from thence 
round about the circumference of the whole earth ; begun in 
the yeere of our Lord 1586, and finished 1588. VVritten by 
Master Francis Pretty, lately of Ey, in Suftblke, a gentleman 
employed in the same action." The author, in the course of 
the narrative, styles himself Francis Pretie, and says that he 
was one of the crew of the " Hugh Gallant, a barke of 40 
tunnes," which, with the Desire, of 120, and the Content, of 
00 tons, made up Cavendish's small fleet. This Suftblk gen- 



KUJNO DA SILVA. 33 

tleman, for several reasons, could not be the same individual 
as the Picard vassal of the lord of Courtomer, nor is it proba- 
ble that he ever formed part of the crew of Drake's vessel in 
the Famous Voyage, as he no where alludes to the circum- 
stance, when he speaks of places which Drake visited, nor 
even when he describes the hull of a small bark, pointed out 
to them by a Spaniard, whom they had lately taken on board, 
in the narrowest part of the Straits of Magellan, " which we 
judged to be a bark called the John Thomas." Now it is 
contrary to all probability that the writer of this passage 
should have been one of Drake's crew, for the vessel, whose 
hull was seen on this occasion, was the Marigold, a bark of 
50 tons, which had formed one of Drake's fleet of five vessels, 
and had been commanded by Captain John Thomas, which 
fact would have been known to one of Drake's companions, 
who could never have committed so gross a blunder as to con- 
found the name of the ship Avith the name of the captain. 
That the circumstances of the loss of the Marigold made no 
slight impression upon the minds of Drake's companions, is 
shown from its being alluded to in all the narratives of Nuno 
da Silva, Clifle, and Fletcher, without exception. 

Drake had succeeded in passing the Straits of Magellan 
with three of his vessels : the Golden Hind, his own ship ; 
the Elizabeth, commanded by Captain Winter ; and the Mari- 
gold, by Captain Thomas. On the 30th of September, 1578, 
the Marigold parted from them in a gale of wind, and was 
wrecked in the Straits. On the 7th of October the Elizabeth 
likewise parted company from the Admiral ; she, however, 
succeeded in making her way back through the Straits, and 
arrived safe at Ilfracombe on the 7th of June, 1579. It is 
singular that, in all the three accounts, which are known to 
be written by companions of Drake, the separation of the 
Marigold, as well as of the Elizabeth, is alluded to ; whereas, 
in the Famous Voyage, there is no allusion to the loss of the 
Marigold, but only to the separation of the Elizabeth, whose 
safe arrival in England made the fact notorious. If Hakluyt 
wrote the Famous Voyage, the general notoriety of the sepa- 
rate return of the Elizabeth would account for his not over- 
looking that circumstance, whilst he omitted all allusion to 
the Marigold, about which his information would be compara- 
tively imperfect. If one of Drake's own crew was the author, 
it is difficult to suppose that he would have carefully alluded 
to " their losing sight of their consort, in which Mr. VtHnter 



34 PURCIIAS' PILGRIMS. 

was," who did not perish, and should omit all mention of the 
loss of the Marigold, which is spoken of in the World Encom- 
passed " as the sorrowful separation of the Marigold from us, 
in which was Captain John Thomas, with many others of our 
dear friends." 

The course of this inquiry seems to justify the followinf^ 
conclusions : that the " Famous Voyage of Sir Francis Drake" 
is, strictly speaking, an anonymous work ; that it is very im- 
probable that it was compiled by one of Drake's crew ; on 
the contrary, Hakluyt's own preface to his edition of 1589, 
seems to warrant us in supposing that he had himself been 
employed in preparing the narrative, which he printed sepa- 
rately from the rest of his work, but subsequently inserted 
into it. Hakluyt had most probably procured information 
from original sources, but he had certainly not access, in 1589, 
to what he subsequently considered to be more trustworthy 
sources, for he made various alterations in his narrative, in 
his edition of 1600. There is assuredly not the slightest 
ground for attributing it to Francis Pretty ; and if M. Eyries 
was the originator of this mistake, he must undoubtedly have 
confounded the Famous Voyage of Drake with the Famous 
Voyage of Candish. All that can be inferred from M. do 
Louvcncourt's dedication of his French translation to M. de 
St. Simon is, that the Lord of Courtomer had received the 
English original from one of his vassals, who had sailed with 
Drake ; but the most ingenious interpretation of his words 
will not warrant us in inferring that the donor was likewise 
the author of the work. 

It may be not unworthy of remark, that Purchas, in the fifth 
volume of his Pilgrims, (p. 1181,) gives a list of persons known 
to the world as the companions of Drake, in which the name 
of Francis Pretty is not found. " Men noted to have com- 
passed the world with Drake, which have come to my hands, 
are Thomas Drake, brother to Sir Francis, Thomas Hood, 
Thomas Blaccoler, John Grippe, George, a musician. Crane, 
Fletcher, Gary, Moore, John Drake, John Thomas, Robert 
Winterly, Oliver, the gunner, &c." It would be a reflection 
upon the well-known pains-taking research of Purchas, to 
suppose that he would have omitted from his list the name of 
the author of the Famous Voyage, had he been really one of 
Drake's crew. 

The other narrative, which is far more full and complete 
than the Famous Voyage, is entitled the " World Encom- 



"the world encompassed." 35 

passed." It was published under the superintendence of Fran- 
cis Drake, a nephew of the Admiral, if not compiled by him ; 
the foundation of it, as stated in the title, seems to have been 
the notes of Francis Fletcher, the chaplain of Drake's vessel, 
" compared with divers others' notes that went in the same 
voyage." Fleurieu, in speaking of this work, says : " Celle- 
ci est le recit d'un temoin oculaire : et la fonction qu'il rem- 
plissait a bord du vaisseau amiral pourrait faire prcsumer que, 
s'il n'etait pas I'homme de la flotte le plus experimente dans 
I'art de la navigation, du moins il devait etre celui que les 
etudes exigees de sa profession avaient mis le plus a portee 
d'acquerir quelques connaissances, et qui pouvait le mieux 
exprimer ce qu'il avait vu." (Recherches sur les terres aus- 
trales de Drake, p. 227.) 

Fleurieu, in further illustration of the probable fitness of 
Fletcher for his task, refers to the excellent account of An- 
son's Voyages, written by his chaplain, R. Walter, and to the 
valuable treatise on naval evolutions, compiled by the Jesuit 
Paul Hoste, the chaplain of Tourville. 

The earliest edition of "The World Encompassed" appeared 
in 1628, and a copy of this date is to be found in the Bodleian 
Library, at Oxford. It was printed for Nicholas Bourne, as 
"the next voyage to that to Nombre de Dios, in 1572, for- 
merly imprinted." A second edition was printed in 1635, 
and is in the King's Library at the British Museum. A third 
edition was published in 1652, and may be found in the Li- 
brary of the British Museum. It was therefore impossible 
not to feel surprise at Mr. Greenhow's deliberately stating, 
that this work was not published before 1652, the more so as 
Watt, in his Bibliotheca Britannica, refers to the first edition 
of 1628. It is the coincidence of this second error, w^hich 
warrants the supposition that Mr. Greenhow has placed too 
implicit a faith in the writer of the article upon Drake, in the 
Biographic Universelle. M. Eyries, the author of that article, 
there writes, " Un autre ouvrage original est celui qui fut 
compose sur les mcmoires de Francis Fletcher, chapelain sur 
le vaisseau de Drake. Ces mcmoires furent compares et fon- 
dus avec ceux de phisieurs autres personnes qui avaient etc 
employees dans la memo expedition ; le resultat de ce travail 
paiut sous ce titre : The World Encompassed, by Sir F. 
Drake, collected out of the notes of Master F. F., preacher in 
this employment, and others. Londres, 1652, 8vo." There 



3G Fletcher's journal. 

is another slight error in this statement, as the work is a 
small 4to, not an 8vo. 

It has been deemed the more necessary to point out care- 
fully the errors of Mr. Greenhow, in regard to these two nar- 
ratives, because he contracts them expressly (p. 74) as " the 
one proceeding entirely from a person who had accompanied 
Drake in his expedition, and published in 1539, during the 
life of the hero ; the other compiled from various accounts, 
and not given to the world until the middle of the following 
century." 

In respect to the narrative of the World Encompassed, Mr. 
Greenhow thus expresses himself: — " It is a long and diffuse 
account, filled with dull and generally absurd speculations, 
and containing moreover a number of statements, which are 
positive and evidently wilfid falsehoods ; yet it contains 
scarcely a single fact not related in the Famous Voyage, 
from which many sentences and paragraphs are taken verba- 
tim, while others convey the same meaning in different terms. 
The journal, or supposed journal of Fletcher's, remains in 
manuscript in the British Museum : and from it were derived 
the false statements above mentioned, according to Barrow, 
who consulted it." 

Mr. Greenhow's opinion of the length and diffuseness of 
the narrative, and of the dulness and general absurdity of the 
speculations, will probably be acquiesced in by those who 
have read the World Encompassed, but the rest of his obser- 
vations have been made at random. The World Encom- 
passed does not profess to be an original work, but to be a 
compilation from the notes of several who went the voyage. 
It is therefore highly probable that the compiler had before 
him " The Famous Voyage " amongst other narratives, and 
we should be prepared to find many statements alike in the 
two accounts. But it seems hard to suppose with Mr. Green- 
how, that, where the World Encompassed differs from the 
Famous Voyage, the statements are " positive and evidently 
wilful falsehoods." There are several statements, for in- 
stance, where the two narratives differ, and where the World 
Encompassed agrees with Nufio da Silva's account, or with 
Ciiife's narrative. 

For instance, on the second day after clearing the Straits 
of Magellan, on Sept. 7th, a violent gale came on from the 
northeast, which drove Drake's three vessels, the Golden Hind, 
the Elizabetli, and the Marip^old to the height of 57° south 



SOUTHERN TERRA INCOGNITA. 37 

according to Cliffe, and about 200 leagues in longitude west 
of the strait, according to the Famous Voyage. They could 
make no head against the gale for three weeks, and during 
that interval there was an eclipse of the moon, which is alluded 
to in all the narratives. According to Nufio da Silva, they 
lay driving about, without venturing to hoist a sail till the last 
day of September, and about this time lost sight of the Mari- 
gold. The Elizabeth still kept company with the Golden 
Hind, but on or before October 7th, Drake's vessel parted 
from her consort. We now come to a very important event 
in Drake's voyage, which would seem to be one of the sup- 
posed " positive and evidently wilful falsehoods," to which 
Mr. Greenhow alludes. 

The Famous Voyage conducts Sir F. Drake in a continuous 
course north-westward, after losing sight of the Elizabeth, to 
the island of Mocha, in 38° 30' south, whereas the World 
Encompassed says, that " Drake, being driven from the Bay 
of the Parting of Friends out into the open sea, was carried 
back again to the southward into 55° south, on which height 
they found shelter for two days amongst the islands, but were 
again driven further to the southward, and at length fell in 
with the uttermost part of land towards the South Pole," in 
about 56° south. Here Fletcher himself landed, and travelled 
to the southernmost part of the island, beyond which there was 
neither continent nor island, but one wide ocean. We altered 
the name, says Fletcher in his MS. journal, from Terra In- 
cognita, to Terra nunc bene Cognita. Now this account in 
the World Encompassed, varying so totally from that in the 
Famous Voyage, is fully borne out by the positive evidence 
of Nuno da Silva, who says, that after losing sight of another 
ship of their com.pany, the Admiral's ship being now left' 
alone, with this foul weather they ran till they were under 
57°, where they entered into the haven of an island, and 
stayed there three or four days. The Famous Voyage would 
lead the reader to suppose, that after leaving the Bay of Se- 
vering of Friends, the Elizabeth and Golden Hind were driven 
in company to 57° 20' south ; but it is altogether contrary to 
probability that ClifFe should have omitted the fact of the Eli- 
zabeth having been in company with Drake when he disco- 
vered the southernmost point of land, had such been the case. 
The author of the Famous Voyage has evidently mixed up the 
events of the gale in the month of September with those of 
the storm after the 8th of October. This is a very striking 



38 Fletcher's manuscript. 

instance of the truth of Captain W. Burney's remark, " that 
the author of the Famous Voyage seems purposely, on some 
occasions, to introduce confusion as a cloak for ignorance." 

Again, the World Encompassed mentions that Drake was 
badly wounded in the face with an arrow by the natives in 
the island of Mocha, about which the Famous Voyage is alto- 
gether silent, but Nufio da Silva confirms this statement. 
Other instances might be cited to the like purport. 

Mr. Greenhow, at the end of his note already cited, says, 
" The journal, or supposed journal of Fletcher, remains in 
MS. in the British Museum, and from it were derived the 
false statements above mentioned, according to Barrow, who 
consulted it." Mr. Greenhow has nowhere particularised 
what these false statements are, unless he means that the 
statements are false which are at variance with the Famous 
Voyage. It is evident, however, that such a view assumes 
the whole point at issue between the two narratives to be de- 
cided upon internal evidence in favour of the Famous Voyage, 
which a careful examination of the two accounts will not 
justify. 

But it is incorrect to refer to Fletcher's journal, as the 
source of the assumed false statements in the World Encom- 
passed. The manuscript to which Captain James Burney 
refers, in his Voyage of Sir Francis Drake round the world, 
as " the manuscript relation of Francis Fletcher, minister, in 
the British Museum," forms a part of the Sloane Collection, 
in which there is likewise a manuscript of Drake's previous 
expedition to Nombre de Dios. It is not, however, properly 
speaking, a MS. of Fletcher's, but a MS. copy of Fletcher's 
MS. It ])ears upon the fly-leaf the words, " e libris Joh. 
Conyers, Pharmacopolist, — Memorandum, Hakluyt's Voyages 
of Fletcher." Its title runs thus: The First Part of the Se- 
cond Voyage about the World, attempted, contrived, and hap- 
pily accomplished, to wit, in the time of three years, by Mr. 
Francis Drake, at her Highness's command, and his company : 
written and faithfully laid down by Ffrancis Ffletcher, Minis- 
ter of Christ, and Presbyter of the Gospel, adventurer and 
traveller in the same voyage." On the second page is a map 
of England, and above it these words : *' This is a map of 
England, an exact copy of the original to a hair ; that done 
by Mr. Ffrancis Ffletcher, in Queen Elizabeth's time ; it is 
copied by Jo. Conyers, citizen and apothecary of London, to- 
gether with the rest, and by the same hand, as follows*" 



LOSS OF THE MARIGOLD. 39 

The work appears to have been very carefully executed by 
Conyers, and is illustrated with rude maps and drawings of 
plants, boats, instruments of music and warfare, strange ani- 
mals, such aes the Vitulus marinus and others, which are 
referred to in the text of the MS., opposite to which they are 
generally depicted, and each is specially vouched to be a faith- 
ful copy of Fletcher's MS. 

There is no date assigned to Fletcher's own MS., but we 
might fairly be warranted in referring it to a period almost 
immediately subsequent to the happy accomplishment of the 
voyage, from the leader of the company being spoken of as 
"Mr. Francis Drdke." The Golden Hind reached England 
in November, 15S0, and Drake was knighted by Queen Eli- 
zabeth in April, 1581; there was then an interval of four 
months, during which the circumstances of his voyage and his 
conduct were under the consideration of the Queen's Council, 
and Fletcher may have completed his journal before their 
favourable decision led to Drake's receiving the honour of 
knighthood. On comparing the World Encompassed with 
this MS., it will be found that most of the speculations, dis- 
cussions, and fine writing in the World Encompassed have 
emanated from the nephew of the hero, or whoever may have 
been the compiler of the work, and have not been derived 
from this MS., which is written in rather a sober style, and 
is much less diffuse than might reasonably be expected. 
Fletcher's imagination seems certainly to have been much 
affected by the giant stature of the Patagonians, and by the 
terrible tempest which dispersed the fleet after it had cleared 
the Straits of Magellan. In respect to the Patagonians, Cliffe, 
it must be allowed, says, they were " of a mean stature, well 
limbed, and of a duskish tawnie or browne colour." On the 
other hand, Nuiio da Silva says, they were " a subtle, great, 
and well-formed people, and strong and high of stature." 
Whichever of the two accounts be the more correct, this cir- 
cumstance is certain, that four of the natives beat back six of 
Drake's sailors, and slew with their arrows two of them, the 
one an Englishman, and the other a Netherlander, so that 
they could be no mean antagonists. In respect to the tempest, 
the events of it must have with reason fixed themselves deep 
into Fletcher's memory, for he writes in his journal, " About 
which time the storm being so outrageous and furious, the 
barke Marigold, wherein Edward Bright, one of the accusers 
of Thomas Doughty, was captain, with 23 souls, was swal- 



40 NORTHERN LIMIT OF DRAKe's VOYAGE. 

lowed up, which chanced in the second watch of the night, 
wherein myself and John Brewer, our trumpeter, being watch, 
did hear their fearful cries continued without hope, dic." 

There is a greater discrepancy between the Famous Voy- 
age and the World Encompassed, as to the furthest limit of 
Drake's expedition to the north of the equator, than, as already 
shown, in regard to the southern limit. We have here, un- 
fortunately, no independent narrative to appeal to in support 
of either statement, as the Portuguese pilot was dismissed by 
Drake at Guatulco, and did not accompany him further. 
Hakluyt himself does not follow the same version of the story 
in the two editions of his narrative. In the Famous Voyage, 
as interpolated in the edition of 1589, he gives 55 J° south, 
as the furthest limit southward ; but in the edition of 1600, 
he gives 57^° ; in a similar manner we find 42° north, as 
the highest northern limit mentioned in the edition of 1589, 
whilst in that of 1600 it is extended to 43°. Hakluyt thus 
seems to have found that his earlier information was not to be 
implicitly relied upon, but we have no clew to the fresh 
sources to which he had at a later period found access. The 
World Encompassed, on the other hand, continues Drake's 
course up to the 48th parallel of north latitude. The two 
narratives, however, do not appear to be altogether irrecon- 
cileable. In the Famous Voyage, as amended in the edition 
of 1600, we have this statement: — "We ♦herefore set sail, 
and sayled (in longitude) 600 leagues a\. least for a good 
winde, and thus much we sayled from the 16 of April till the 
3 of June. The 5 day of June, being in 43 degrees towards 
the pole arcticke, we found the ayre so colde that our men, 
being greevously pinched with the same, complained of the 
extremitie thereof, and tlie further we went, the more the cold 
increased upon us. Whereupon we thought it best for that 
time to seek the land, and did so, 'finding it not mountainous, 
but low plaine land, till we came within 38 degrees towards 
the line. In which height it pleased God to send us into a 
faire and good baye, with a good winde to enter the same." 

It will be seen from this account, that it was in the 43d, 
or, as in the earlier edition of 1589, the 4'2d parallel of north 
lat., that the cold was first felt so intensely by Drake's crew, 
and that the further they went, the more the cold increased 
upon them ; so that from the latter passnge it may )»e inferred 
that they did not discontinue their course at once as soon as 
they reached the 43d parallel. 



MR. GREENIIOW'S OBJECTIONS. 41 

It appears, likewise, that Drake, from the nature of the 
wind, was obliged to gain a considerable offing, before he 
could stand towards the northward : 600 leagues in longitude, 
according to the first edition (the second edition omitting the 
words ' in longitude,') which does not differ much from the 
World Encompassed. The latter states — "From Guatulco, 
or Aquatulco, we departed the day following, viz., April 16, 
setting our course directly into the sea, whereupon we sailed 
600 leagues in longitude to get a wind : and between that and 
June 3, 1400 leagues in all, till we came into 42 degrees of 
latitude, where the night following we found such an alterna- 
tion of heat into extreme and nipping cold, that our men in 
general did grievously complain thereof." 

The cold seems to have increased to that extremity that, 
in sailing two degrees further north, the ropes and tackling 
of the ship were quite stiffened. The crew became much 
disheartened, but Drake encouraged them, so that they re- 
solved to endure the uttermost. On the 5th of June they were 
forced by contrary winds to run into an ill-sheltered bay, 
where they were enveloped in thick fogs, and the cold be- 
coming still more severe, " commanded them to the south- 
ward whether they would or no." "From the height of 48 
degrees, in which now we were, to 33, we found the land by 
coasting along it to be but low and reasonable plain : every 
hill, (whereof we saw many, but none very high, (though it 
were in June, and the sun in his nearest approach to them, 
being covered with snow. In 38° 30' we fell in with a con- 
venient and fit harbour, and June 17th came to anchor therein, 
where we continued until the 23d day of July following." 

The writer of this account, in another paragraph, confirms 
the above statement by saying, " add to this, that though we 
searched the coast diligently, even unto 48°, yet we found 
not the land to trend so much as one point in any place to- 
wards the East, but rather running on continually north-west, 
as if it went directly into Asia." 

Mr. Greenhow is disposed to reject the statement of the 
World Encompassed, for two reasons : first, because it is im- 
probable that a vessel like Drake's couM have sailed through 
six degrees of latitude from the 3d to the 6th of June ; se- 
condly, because it is impossible that such intense cold could 
be experienced in that part of the Pacific in the month of 
June, as is implied by the circumstances narrated, and there- 
fore they must be "direct falsehoods." 



42 INTENSE COLD. 

The first objection has certainly some reason in it ; but in 
rejecting the World Encompassed, Mr. Grecnhow adopts the 
Famous Voyage as the true narrative, so that it becomes ne- 
cessary to see whether Hakluyt's account is not exposed to 
objections equally grave. 

Hakluyt agrees with the author of the World Encompassed, 
in dating Drake's arrival at a convenient harbour on June 
17, — (Hakluyt gives this date in vol. iii., p. 624,) — so that 
Drake would have consumed twelve days in running back 
three and a half degrees, according to one version of the Fa- 
mous Voyage, and four and a half degrees according to the 
other, before a wind which was so violent that he could not 
continue to beat against it. There is no doubt about the sit- 
uation of the port where Drake took shelter, at least within 
half a degree, that it was either the Port de la Bodega, in 38° 
28', as some have with good reason supposed, (Maurelle's 
Journal, p. 626, in Barrington's Miscellanies,) or the Port de 
los Reyes, situated between La Bodega and Port San Fran- 
cisco, in about 38°, as the Spaniards assert ; and there is no 
difference in the two stories in respect to the interval Avhich 
elapsed after Drake turned back, until he reached the port. 
There is, therefore, the improbability of Drake's vessel, ac- 
cording to Hakhiyt, making so little way in so long a time 
before a wind, to be set off against the improbability of its 
making, according to the World Encompassed, so much way 
in so short a time on a wind, the wind blowing undoubtedly 
all this time very violently from the north-west. Many persons 
may be disposed to think that the two improbabilities balance 
each other. 

In respect to the intense cold, it must be remembered that 
the Famous Voyage, equally with the World Encompassed, 
refers to the great extremity of the cold as the cause of Drake's 
drawing back again till he reached 38°. There can, there- 
fore, be no doubt that Drake did turn back on account of his 
men being unable to bear up against the cold, after having 
so lately come out of the extreme heat of the tropics. Is it 
more probable that this intense cold should have been expe- 
rienced in the higher or the lower latitude ? for the intense 
cold must be admitted to be a fact. Drake seems to have 
been exposed to one of those severe winds termed Northers^ 
which in the early part of the summer, bringdown the atmo- 
sphere, even at New Orleans and Mexico, to the temperature 
of winter ; but without seeking to account for the cold, as that 



STOW, THE ANNALIST. 43 

would be foreign to the present inquiry, the fact, to whatever 
extent it be admitted, would rather support the statement that 
Drake reached the 4Sth parallel, than that he was constrained 
to turn back at the lower latitude of 43°. 

It may likewise be observed that the description of the 
coast, " as trending continually north-westward, as if it went 
directly into Asia," would correspond with the 48th parallel, 
but be altogether at variance with the 43d ; and it is admit- 
ted by all, that Drake's object was to discover a passage from 
the western to the eastern coast of North America. His 
therefore finding the land not to trend so much as one point 
to the east, but, on the contrary, to the westward, whilst it 
fully accounts for his changing his course, determines also 
where he decided to return. It should not be forgotten that 
the statement in the World Encompassed, that the coast 
trended to the westward in 48°, was in contradiction of the 
popular opinion regarding the supposed Straits of Anian, and 
if it were not the fact, the author hazarded, without an ade- 
quate object, the rejection of this part of his narrative, and 
unavoidably detracted from his own character for veracity. 

We have, however, two cotemporaries of Sir Francis 
Drake, v/ho confirm the statement of the World Encompassed. 
One of these has been strangely overlooked by Mr. Green- 
how ; namely. Stow the annalist, who, under the year 1580, 
gives an account of the return of Master Francis Drake to 
England, from his voyage round the world. " He passed," 
he says, " forth northward, till he came to the latitude of forty- 
seven, thinking to have come that way home, but being con- 
strained by fogs and cold winds to forsake his purpose, came 
backward to the line ward the tenth of June, 1579, and stayed 
in the latitude of thirty-eight, to grave and trim his ship, until 
the five-and-twenty of July." This is evidently an account 
derived from sources quite distinct from those of either of the 
other two narratives. It occurs as early as 1592, in an edition 
of the Annals which is in the Bodleian Library at Oxford, so 
that it was circulated two years at least before Drake's death. 

The other authority is that of one of the most celebrated 
navigators of Drake's age, John Davis, of Sandrug by Dart- 
mouth, who was the author of a work entitled " The World's 
Hydrographical Discovery." It was " imprinted at London, 
by Thomas Dawson, dwelling at the Three Cranes in the 
Vine-tree, in 1595," and may be found most readily in the 
4th volume of the last edition of Hakluyt's Voyages. After 



44 JOIIiV DAVIS. 

giving some account of the dangers which Drake had sur- 
mounted in passing through the Straits of Magellan, which 
Davis had himself sailed through three times, he proceeds to 
say, that " after Sir Francis Drake was entered into the South 
Seas, he coasted all the western shores of America, until he 
came into the septentrional latitude of forty-eight degrees, 
being on the back side of Newfoundland." Now Davis is 
certainly entitled to respectful attention, from his high charac- 
ter as a navigator. He had made three voyages in search of a 
north-west passage, and had given his name to Davis' Straits, 
as the discoverer of them ; he had likewise been the com- 
panion of Cavendish in his last voyage into the South Seas, 
in 1591-93, when, having separated from Cavendish, he dis- 
covered the Falkland islands. He was therefore highly com- 
petent to form a correct judgment of the value of the accounts 
which he had received respecting Drake's voyage, nor was 
he likely, as a rival in the career of maritime discovery, to 
exaggerate the extent of it. We find him, on this occasion, 
deliberately adopting the account that Drake reached that 
portion of the north-west coast of America, which corres- 
ponded to Newfoundland on the north-east coast, or, as he dis- 
tinctly says, the septentrional latitude of 48 degrees. 

Davis, however, is not the only naval authority of that pe- 
riod who adopted this view, for Sir William Monson, who was 
admiral in the reign of Elizabeth and James I., and served 
in expeditions against the Spaniards under Drake, in his in- 
troduction to Sir Francis Drake's voyage round the world, 
praises him because " lastly and principally that after so many 
miseries and extremities he endured, and almost two years 
spent in unpractised seas, when reason would have bid him 
sought home for his rest, he left his known course, and ven- 
tured upon an unknown sea in forty-eight degrees, which sea 
or passage we know had been often attempted by our seas, 
but never discovered." And in his brief review of Sir F. 
Drake's voyage round the world, he says: " From the 16th 
of April to the 5th of June he sailed without seeing land, and 
arrived in forty-eight degrees, thinking to find a passage into 
our seas, which land he named Albion." (Sir W. Monson's 
Naval Tracts, in Churchill's Collection of Voyages, vol. iii., 
pp. 367, 368.) 

Mr. Greenhow (j). 75) says, that Davis's assertion carries 
with it its own refutation, " as it is nowhere else pretended 
that Drake saw any part of the west coast of America between 



MR. GREENUOW'S OBJECTIONS. 45 

the 17th degree of latitude and the 38th." But surely Davis 
might use the expression, " coasted all the western shores of 
America," without being supposed to pretend that Drake kept 
in sight of the coast all the way. The objection seems to be 
rather verbal than substantial. Again, Sir W. Monson is 
charged by the same author with inconsistency, because he 
speaks of C. Mendocino as the " furthest land discovered," 
and the " furthermost known land." But Sir W. Monson is 
on this occasion discussing the probable advantages of a north- 
M'est passage as a saving of distance, and he is speaking of 
C. Mendocino, as the " furthermost known part of America," 
i. e., the furthermost headland from which a course might be 
measured to the Moluccas, and he is likewise referring espe- 
cially to the voyage of Francisco Gali, so that this objection 
is more specious than solid. It should likewise not be for- 
gotten, that in the most approved maps of that day, in the last 
edition of Ortelius, for example, and in that ofHondius, which 
is given in Purchas's Pilgrims, C. Mendocino is the northern- 
most point of land of Norih America. It may also not be 
amiss to remark, that in the map which Mr. Hallam (in his 
Literature of Europe, vol. ii., c. viii., § v.) justly pronounces to 
be the best map of the sixteenth century, and which is one of 
uncommon rarity, Cabo Mendocino is the last headland 
marked upon the north-west coast of America, in about 43° 
north latitude. This map is found with a few copies of the 
edition of Hakluyt of 1589 : in other copies, indeed, there is 
the usual inferior map, in which C. Mendocino is placed be- 
tween 50° and 60°. The work, however, in which it has 
been examined for the present purpose, is Hakluyt's edition 
of 1600, in which it is sometimes found with Sir F. Drake's 
voyage traced out upon it : but in the copy in the Bodleian 
Library, no such voyage is observed ; whilst the line of coast 
is continued above C. Mendocino and marked, in large letters, 
" Nova Albion." Thus Hakluyt himself, in adopting this 
map as " a true hydrographical description of so much of the 
world as hath been hitherto discovered and is common to our 
knowledge," has so far admitted that Nova Albion extended 
beyond the furthest land discovered by the Spaniards. On 
the other hand, Camden, in his life of Elizabeth, first pub- 
lished in 1615, adopts the version of the story which Hakluyt 
had put forth in his earliest edition of the Famous Voyage, 
making the southern limit 55° south, and the northern 42° 
north, which Hakluyt has himself rejected in his later edition, 

3* 



46 Johnson's life of drake. 

There c?.n be little doubt that Camden's account bears inter- 
nal evidence of having been copied in the main from Ilakluyt. 
Purchas, as we may gather from his work, merely followed 
Ilakluyt. 

In addition to these, Mr. Greenhow enumerates several 
comparatively recent authors as adopting Ilakluyt's opinion. 
Of these, perhaps Dr. Johnson has the greatest renown. He 
published a life of Drake in parts, in five numbers of the Gen- 
tleman's Magazine for 1740-41. It was, however, amongst 
his earliest contributions, when he was little more than thirty 
years of age, and therefore is not entitled to all the weight 
which the opinion of Dr. Johnson at a later period of life might 
carry with it. But as it is, the passage, as it stands at pre- 
sent, seems to involve a clerical error. " From Guatulco, 
which lies in 15"^ 40', they stood out to sea, and without ap- 
proaching any land, sailed forward till on the night following 
the 3d of June, being then in the latitude of 3H°, they were 
suddenly benumbed with such cold blasts that they were 
scarcely able to handle the ropes. This cold increased upon 
them, as they proceeded, to such a degree that the sailors 
were discouraged from mounting upon deck ; nor were the 
effects of the climate to be imputed to the warmth of the re- 
gions to which they had been lately accustomed, for the ropes 
were stiff with frost, and the meat could scarcely be conveyed 
warm to the table. On June 17th they came to anchor in 38° 
30'." 

In the original paper, as published in the Gentleman's 
Magazine for January, 1741, Dr. Johnson writes 88° in num- 
bers as the parallel of latitude where the cold was felt so 
acutely. This would be in a far lower latitude than what any 
of the accounts of Drake's own time gives ; so that it may for 
that reason alone be suspected to be an error of the press, 
more particularly as Drake is made ultimately to anchor in 
33° 30', a higher latitude than that in which his crew were 
benumbed with the cold. We must either suppose that Dr. 
Johnson entirely misunderstood the narrative, and intention- 
ally represented Drake as continuing his voyage northward 
in spite of the cold, and anchoring in a higher latitude than 
where his men were so much discouraged by its severity, or 
that there is a typographical error in the figures. The latter 
seems to be the more probable alternative ; and if, in order 
to correct this error, we may reasonably have recourse to the 
autl.ority fiom which ho derived his information as to the lati- 



marchand's voyage. 47 

tude of the port where Drake cast anchor, it is to the World 
Encompassed, and not to the Famous Voyage, that we must 
refer ; for it is the World Encompassed which gives us 38° 
30' as the latitude of the convenient and fit harbour, whereas 
the Famous Voyage sends Drake into a fair and good bay in 
38.° 

The dispute between Spain and Great Britain respecting 
the fur trade on the north-west coast of America having 
awakened the attention of the European powers to the value 
of discoveries in that quarter, a French expedition was in con- 
sequence despatched in 1790, under Captain Etienne Mar- 
chand, who, after examining some parts of the north-west 
coast of America, concluded the circumnavigation of the globe 
in 1792. Fleurieu, the French hydrographer, published a 
full account of Marchand's Voyage, to which he prefaced an 
introduction, read before the French Institute in July, 1797. 
In this introduction he reviews briefly the course of maritime 
discovery in these parts, and states his opinion, wdthout any 
qualification, that Sir Francis Drake made the land on the 
north-west coast of America in the latitude of 48 degrees, 
which no Spanish navigator had yet reached. Mr. Green- 
how (p. 223) speaks highly of Fleurieu's work, though he 
considers him to have been careless in the examination of his 
authorities. He observes, that "his devotion to his own coun- 
try, and his contempt for the Spaniards and their government, 
led him frequently to make assertions and observations at 
variance with truth and justice." It may be added, that at 
the time when he composed his introduction, the relations of 
France and Great Britain were not of a kind to dispose him 
to favour unduly the claims of British navigators. 

The same train of events which terminated in the Nootka 
Convention, led to a Spanish expedition under Galiano and 
Valdes, of which an account was published, by order of the 
king of Spain, at Madrid, in 1802. The introduction to it 
comprises a review of all the Spanish voyages of discovery 
along the north-west coast, in the course of which it is ob- 
served, that, from want of sufficient information in Spanish 
history, certain foreign writers had undervalued the merit of 
Cabrillo, by assigning to Drake the discovery of the coast 
between 38° and 48° ; whereas, thirty-six 3-ears before 
Drake's appearance on that coast, Cabrillo had discovered 
it between 38° and 43^. A note appended to this passage 
states : — "The true glory which the English navigator m^y 



49 Humboldt's new spain. 

claim for himself is the having discovered the portion of coast 
comprehended between the parallels of 43*^ and 48° ; to which, 
consequently, the denomination of New Albion ought to be 
limited, without interfering with the discoveries of preceding 
navigators." (Relacion del Viage hecho por las Goletas 
Sutil y Mexicana en el aiio de 1792. Introduccion, pp. xxxv. 
xxxvi.) 

To the same purport, Alexander von Humboldt, in his Essai 
Politique sur la Nouvelle Espagne, says : — " D'aprcs des don- 
nfees historiques certaines,la denomination de Nouvelle Albion 
devrait etre restreinte a la partie de la c6te qui s'etend depuig 
les 43° aux 48°, ou du Cap de Martin de Aguilar, a I'entree 
de Juan de Fuca," (1. iii., c. viii.) And in another passage : 
" On trouve que Francisco Gali cotoya une partie de I'Archi- 
pel du Prince de Galles ou celui du Roi George (en 1582.) 
Sir Francis Drake, en 1578, n'etait parvenu que jusqu'aux 
48"^ de latitude au nord du cap Grenville, dans la Nouvelle 
Georgie." 

The question of the northern limits of Drake's expedition 
has been rather fully entered into on this occasion, because it 
is apprehended that Drake's visit constituted a discovery of 
that portion of the coast which was to the north of the furthest 
headland which Ferrelo reached in 1543, whether that 
headland were Cape Mendocino, or Cape Blanco ; and be- 
cause Mr. Greenhow, in the preface to the second edition of 
his History of Oregon and California, observes, that in the 
accounts and views there presented of Drake's visit to the 
north-west coast, all who had criticised his work were silent, 
or carefully omitted to notice the principal arguments ad- 
duced by the author. We may conclude with observing, that 
on reviewing the evidence it will be seen, that in favour of 
the higher latitude of 48° we have a well authenticated ac- 
count drawn up by the nephew of Sir Francis Drake himself, 
from the notes of several persons who went the voyage, con- 
firmed by independent statements in two contemporary wri- 
ters. Stow the annalist, and Davis the navigator, and sup- 
ported by the authority of Sir W. Monson, who served with 
Drake in the Spanish wars after his return ; and on this side 
we find ranked the influential judgment of the ablest modern 
writers who have given their attention to the subject, such as 
the distinguished French hydrographer Fleurieu, the able author 
of the Introduction to the Voyage of the Sutil and Mexicana, 
published by the authority of the king of Spain, and the learned 



EVIDENCE AS TO THE LIMIT OF DKAKe's EXPEDITION. 49 

and laborious Alexander von Humboldt. On the opposite side 
stands Hakkiyt, and Hakluyt alone ; for Camden and Pur- 
chas both followed Hakluyt implicitly, and though they may 
be considered to approve, they do not in any way confirm his 
account ; while Hakluyt himself has nowhere disclosed his 
sources of information, and by the variation of the two editions 
of his work in the two most important facts of the whole voy- 
age, namely, the extreme limits southward and northward 
respectively of Drake's expedition, he has indirectly made 
evident the doubtful character of the information on which he 
relied, and has himself abandoned the version of the story, 
which Camden and the author of the Yie de Drach, have 
adopted upon his authority. 



50 



CHAPTER III. 

ON THE DISCOVERY OF THE NORTH-WEST COAST OF 
AMERICA. 

The Voyage of Francisco de Gualle, or Gali, in 1584, — Of Viscaino, in 
in 1598. — River of Martin d'Aguilar. — Cessation of Spanish Enterpri- 
ses. — Jesuit Missions in California in the 18th century. — Voyage of 
Behring and TchiricofFin 1741. — Presidios in Upper California. — Voy- 
age of Juan Perez in 1774; of Heceta and de la Bodega in 1775. — 
lleceta's Inlet. — Port Bucareli. — Bay of Bodega. — Hearne's Journey to 
the Coppermine River. — Captain James Cook in 1776. — Russian Estab- 
lishments, in 1783, as far as Prince William's Sound ; in 1787, as far 
as Mount Elias. — Expeditions from Macao, under the Portuguese flag, 
in 1785 and 1786 ; under that of the British East India Company in 
1786. — Voyage of La Perouse in 1786. — King George's Sound Com- 
pany. — Portland and Dixon, in 1786. — Mcarcs and Tipj)ing, in 17b6, 
under Flag of East India Company. — Duncan and Colnett in 1787. — 
Captain Barclay discovers in 1787 the Straits in 48° 30', to which 
Meares gives the name of Juan de Fuca in 1788. — Prince of Wales's 
Archipelago. — Gray and Kendrick. 

The Spaniards had long coveted a position in the East Indies, 
but the Bull of Pope Alexander VI. precluded them from sail- 
ing eastward round the Cape of Good Hope ; they had, in 
consequence, made many attempts to find their Avay thither 
across the Pacific. It was not, however, till 1564, that they 
succeeded in estal)lishing themselves in the Philippine Isl- 
ands. Thenceforth Spanish galleons sailed annually from 
Acapulco to Manilla, and back by Macao. The trade winds 
wafted them directly across from New Spain in about three 
months : on their return they occupied about double that time, 
and generally reached up into a northerly latitude, in order to 
avail themselves of the prevailing north- westers, which carried 
them to the shores of California. 

An expedition of this kind is the next historical record of 
voyages on this coast, after Drake's visit. Ilakluyt has pub- 
lished the navigator's own account of it in his edition of IGOO, 
as the " True and perfect Description of a Voyage performed 
and done by Francisco de Gualle, a Spanish Captain and 
Pilot, &€., in the Year of our Lord 1584." It purports to 



LINDSCHOTEN. 51 

have been translated out of the original Spanish, verbatim, 
into Low Dutch, by J. H. van Lindschoten ; and thence into 
English hy Hakluyt. According to this version of it, Gualle, 
on his return from Macao, made the coast of New Spain 
"under seven-and-thirty degrees and a half." The author of 
the " Introduction to the Journal of Galiano and Valdes " has 
substituted 57^ for 37^ degrees in Gualle's, or rather Gali's, 
account, without stating any reason for it. Mr. Greenhow, 
indeed, refers to a note of that author's, as intimating that he 
relied upon the evidence of papers found in the archives of 
the Indies, but on examining the note in p. xlvi., it evidently 
refers to two letters from the Archbishop of Mexico, then 
Viceroy of New Spain, to the King, in reference to an expe- 
dition which he proposed to intrust to Jayme Juan, for the 
discovery of the Straits of Anian. It is true that the Arch- 
bishop is stated to have consulted Gali upon his project, but 
the author of the " Introduction " specially alludes to Lind- 
schoten, as the person to whom the account of Gali's Voyage 
in 15S2 was due, and refers to a French Translation of Lind- 
schoten's work, under the title of "Le Grand Routier de 
Mer," published at Amsterdam in 163S. But Lindschoten's 
original work was written in the Dutch language, being inti- 
tied " Reysgeschrift van de Navigatien der Poitigaloysers in 
Orienten," and was published towards the end of the sixteenth 
century; and two English translations of Gali's Voyage im- 
mediately appeared, one in Wolf's edition of Lindschoten, in 
1598; the other in the third volume of Hakluyt, 1598-1600. 
Lindschoten's own Dutch version was subsequently inserted 
in Witsen's "Norden Oost Tarterj-e," in 1692. All these 
latter accounts, including the original, agree in stating seven- 
and-thirty degrees and a half as the latitude where Gali dis- 
covered "a very high and fair land, with many trees, and wholly 
without snow." The passage in the original Dutch may be 
referred to in Burney's History of Voyages, vol. v., p. 164. 
The French translation, however, which the author of the 
Introduction consulted, gives 57^°, the number being ex- 
pressed in figures ; but as this seems to be the only authority 
for the change, it can hardly justify it. " A high land," ob- 
serves Captain Burney, " ornamented with trees, and entirely 
without snow, is not inapplicable to the latitude of 37|°, but 
would not be credible if said of the American coast in 57 p 
N., though nothing were known of the extraordinary high 
mountains which are on the western side of America in that 



52 LE GRAND ROUTIER DE MER. 

parallel. It may be observed, that the French translator has 
likewise misstated the course which Gali held in reaching 
across from Japan to the American coast, by rendering "east 
and east-by-north" in the original, as "east and north-east" 
in the French version, making a difference of three points in 
the compass, which would take him much farther north than 
his true course. 

M. Eyries, in the article " Gali," in the Biographic Uni- 
verselle, puts forward the same view of the cause of the varia- 
tion of the latitude in the account adopted by the author of the 
Introduction, namely, that it was derived from the French 
translation which he consulted. The words in the French 
version of the Grand Routier de Mer are ; "Estans venus 
suivant ce mesme cours pres de la coste de la Nouvelle Es- 
pagne a la hauteur de 57 degrez et demi, nous approchasmes 
d'un haut et fort beau pays, orne de nombre d'arbres et en- 
tierement sans neige." M. Eyries, however, has fallen into 
a curious mistake, as he represents Gali to have made the 
identical voyage which is the subject of the narrative, in com- 
pany with Jayme Juan, in execution of the project of the 
Viceroy of Mexico, which was never accomplished, instead 
of his having made the account of the voyage for him. That 
M. Eyries is in error will be evident, not merely from the ac- 
count of the author of the Introduction, if more carefully ex. 
amined, as well as from the title and conclusion of the Voyage 
of Gali itself, as given in Hakluyt's translation of the Dutch 
version of Lindschoten ; but also from this circumstance, 
which seems to be con^lasive. M. de Contreras, Archbishop 
of Mexico, was Viceroy of New Spain for the short s|)ace of 
one year only, and the letters which he wrote to the King of 
Spain, submitting his project of an expedition to explore the 
north-west coast of America for his Majesty's approval, bore 
date the 22d January and 6th March, 1585. But Gali com- 
menced his voyage from Acapulco in March 1582, and had re- 
turned by the year 1584, most probably before the Archbishop 
had entered upon his office of V^iceroy, certainly before he 
submitted his plans to the King, which he had matured after 
consultation with Gali. It is difficult to account for M. Eyries' 
mistake, unless it originated in an imperfect acquaintance 
with the Spanish language, as the statement ])y the author of 
the Introduction is by no means obscure. Gall's voyage was 
thus a private mercantile enterprise, and not an expedition 
authorised and directed by the Government of New Spain, 



MARTIN d'aGUILAR. 53 

which the account of M. Eyries might lead his reader to sup- 
pose. It has acquired, accidentally, rather more importance 
of late than it substantially deserves, from the circumstance 
of its having been cited in support of the Spanish title to the 
north-west coast of America; it has consequently been thought 
to merit a fuller examination on the present occasion, as to its 
true limits northward, which clearly fall short of those attained 
by the Spaniards under Ferrelo, and very far short of those 
reached by the British under Drake. 

The next authentic expeditions on these coasts were those 
conducted by Sebastian Viscaino. The growing rumours of 
the discovery of the passage between the Atlantic and Pacific 
by the Straits of Anian, and the necessity of providing accu- 
rate charts for the vessels engaged in the trade between New 
Spain and the Philippine islands, induced Philip II. to direct 
an expedition to be dispatched from Acapulco in 1596, to sur- 
vey the coasts. Nothing however of importance was accom- 
plished on this occasion, but on the succession of Philip III. 
in 1598, fresh orders were despatched to carry into execution 
the intentions of his predecessor. Thirty-two charts, accord- 
ing to Humboldt, prepared by Henri Martinez, a celebrated 
engineer, prove that Viscaino surveyed these coasts with 
unprecedented care and intelligence. " The sickness, how- 
ever, of his crew, the want of provisions, and the extreme 
severity of the season, prevented his advancing further north 
than a headland in the 42d parallel, to which he gave the 
name of Cape Sebastian." The smallest of his three vessels, 
however, conducted by Martin d'Aguilar and Antonio Florez, 
doubled Cape Mendocino, and reached the 43d parallel, where 
they found the mouth of a river which Cabrillo has been sup- 
posed by some to have previously discovered in 1543, and 
which was for some time considered to be the western ex- 
tremity of the long-sought Straits of Anian. The subsequent 
report of the captain of a Manilla ship, in 1620, according to 
Mr. Greenhow, led the world to adopt a different view, and 
to suppose that it was the mouth of a passage into the northern 
extremity of the Gulf of California ; and accordingly, in maps 
of the later half of the seventeenth century, California was 
represented to be an island, of which Cape Blanco was the 
northernmost headland. After this error had been corrected 
by the researches of the Jesuit Kuhn, in 170 ), we find in the 
maps of the eighteenth century, such as that of Guillaume de 
Lisle, published in Paris in 1722, California a peninsula, Cape 



54 BEHEING AND TCUIRICOFF. 

Blanco a headland in 45% and near it marked " Entree de- 
couverte par d'Aguilar." 

With Gali and Viscaino terminates the brilliant period of 
Spanish discoveries along the north-west coast of America. 
The governors of New Spain during the remainder of the sev- 
enteenth century and the greater part of the eighteenth, con- 
fined their attention to securing the shores of the peninsula of 
California against the armed vessels of hostile Powers, which, 
after the discovery of the passage round Cape Horn in 1616, 
by the Dutch navigators Lemaire and Van Schouten, carried 
on their depredations in the Pacific with increasing frequency. 
The country itself of California, was in 1697 subjected, by a 
royal warrant, to an experimental process of civilisation at the 
hands of the Jesuits, which their success in Paraguay em- 
boldened them to undertake. In about sixty years a chain of 
missions was established along the whole eastern side of Cali- 
fornia, and the followers of Loyola maybe considered to have 
ruled the country, till the decree issued by Charles III. in 
1767, for the immediate banishment of the society from the 
Spanish dominions, led to their expulsion from the New World. 
During this long period, the only expedition of discovery that 
ventured into these seas was that which Behring and Tchiri- 
coff led forth in 174 1 from the shores of Kamtchatka, under 
the Russian flag. Behring's own voyage southward is not 
supposed to have extended beyond the 60th parallel of north 
latitude, where he discovered a stupendous mountain, visible 
at the distance of more than eighty miles, to which he gave 
the name of Mount St. Elias, which it still bears. The ac- 
count is derived from the journal of Steller, the naturalist of 
Behring's ship, which Professor Pallas first published in 1795, 
as Behring himself died on his voyage home, in one of the 
islands of the Aleutian Archipelago, between 54j and 55^ 
degrees north latitude. Here his vessel had been wrecked, 
and the island still bears the name of the Russian navigator. 
Tchiricoff, on the other hand, advanced further eastward, and 
the Russians themselves maintain that he pushed his discov- 
eries as far south as the 49th parallel of north latitude, (Letter 
from the Chevalier de Poletica, Russian Minister, to the Sec- 
retary of State at Washington, February 28, 1822, in British 
and Foreign State Papers, 1821-22, p. 483 ;) but this has 
been disputed. Mr. Greenhow considers, from the descrip- 
tion of the latitude and bearings of the land discovered by him, 



JUAN PEREZ, 55 

that it must have been one of the islands of the Prince of 
Wales's Archipelago, in about 56"^. 

The discoveries of the Russians, of which vague rumours 
had found their way into Europe, and of which a detailed ac- 
count was given to the Academy of Sciences at Paris, in 1750, 
by J. N. de I'lsle, the astronomer, on his return from St. 
Petersburg, revived the attention of Spain to the importance 
of securing her possessions in the New World against the 
encroachments of other Powers. It was determined that the 
vacant coasts and islands adjacent to the settled provinces of 
New Spain should be occupied, so as to protect them against 
casual expeditions, and that the more distant shores should be 
explored, so as to secure to the crown of Spain a title to them, 
on the grounds of first discovery. With this object " the Ma- 
rine Department of San Bias" was organised, and was charged 
with the superintendence of all operations by sea. Its activity 
was evinced by the establishment of eight "Presidios" along 
the coast in Upper California, in the interval of the ten years 
immediately preceding 1779. Of these San Diego, in 32'^ 
39' 30", was the most southerly ; San Francisco, in 38° 48' 30", 
the most northerly. During the same period, three expeditions 
of discovery were dispatched from San Bias. The earliest of 
these sailed forth in January, 1774, under the command of 
Juan Perez, but its results were not made known before 1802, 
when the narrative of the expedition of the Sutil and Mexicana 
was published, as already stated. According to this account, 
Perez, having touched at San Diego and Monterey, steered 
out boldly into the open sea, and made the coast of America 
again in 53° 53' north. In the latitude of 55° he discovered 
a headland, to which he gave the name of Santa Margarita, at 
the northern extremity of Queen Charlotte's Island. The 
strait which separates this island from that of the Prince of 
Wales, is henceforward marked in Spanish maps as the En- 
trada de Perez. A scanty supply of water, however, soon 
compelled him to steer southward, and he cast anchor in the 
Bay of San Lorenzo in 49° 30', in the month of August, and 
for a short time engaged in trade with the natives. Spanish 
writers identify the bay of San Lorenzo with that to which 
Captain Cook, four years afterwards, gave the name of Nootka 
Sound. Perez was prevented from landing on this coast by 
the stormy state of the weather, and his vessel was obliged to 
cut her cables, and put to sea with the loss of her anchors. 
He is supposed, in coasting southward, to have caught sight 



56 maurelle's journal. 

of Mount Olympus in 47° 47'. Having determined the true 
latitude of C. Mendocino, he returned to San Bias, after about 
eight months' absence. Unfortunately for the fame of Perez, 
the claim now maintained for him to the discovery of Nootka 
Sound, was kept secret by the Spaniards till after general 
consent had assigned it to Captain Cook. The Spaniards 
have likewise advanced a claim to the discovery of the Straits 
of Fuca, upon the authority of Don Esteban Jose Martinez, 
the pilot of the Santiago, Perez' vessel ; who, according to 
Mr. Greenhow, announced many years afterwards that he 
remembered to have observed a wide opening in the land be- 
tween 48° and 49° : and they have consequently marked in 
their charts the headland at the entrance of the straits as Cape 
Martinez. No allusion, however, is made to this claim in the 
Introduction to the Voyage of the Sutil and Mexicana, nor in 
Humboldt's New Spain. 

In the following year (1775) a second expedition sailed 
from San Bias under the orders of Don Bruno Heceta, Don 
Juan de Ayala, and Don Juan de la Bodega y Quadra. The 
Spanish government observed their usual prudent silence as 
to the results of this expedition, but the journal of Antonio 
Maurelle, " the second pilot of the fleet,'' who acted as pilot 
in the Senora, which Bodega commanded, fell into the hands 
of the Hon. Daines Barrington, who published an English 
translation of it in his Miscellanies, in 1781. There are four 
other accounts in MS. amongst the archives at Madrid. From 
one of these, the journal of Heceta himself, a valuable extract 
is given in Mr. Greenhow's Appendix. Their first discovery 
north of C. Mendocino, was a small port in 41° 7', to w^hich 
they gave the name of La Trinidad, and where they fixed up 
a cross, which Vancouver found still remaining in 1793. They 
then quitted the coast, and did not make the land again till 
they reached 48° 26', whence they examined the shore in 
vain towards the south for the supposed Strait of Fuca, which 
was placed in Bellin's fanciful chart, constructed in 1766, be- 
tween 47° and 48°. Having had seven of the Senora's men 
massacred by the natives in the latitude of 47° 20', where 
twelve years later a portion of the crew of the Imperial Eagle 
were surprised and murdered, they resumed their voyage 
northward, though Heceta, owing to the sickness of his crew, 
was anxious to return. A storm soon afterwards separated 
the two vessels, and Heceta returned southward. On his 
voyage homewards he first made the land on the 10th of 



PORT DE LA BODEGA. 57 

August, in 49° 30', on the south-west side of the great island 
now known as Vancouver's Island, and passing the part which 
Perez had visited, came upon the main land below the en- 
trance of the Straits of Fuca. On the 17th of August, as he 
was sailing along the coast between 46° 40' and 46° 4', 
according to Heceta's own report, or in 46° 9' according to 
the Introduction to the Voyage of the Sutil and Mexicana, 
Heceta discovered a great bay, the head of which he could no 
where recognise. So strong, however, were the currents and 
eddies of the water, that he believed it to be " the mouth of 
some great riv^er, or passage to another sea." He was dis- 
posed, according to his own statement, to conceive it to be the 
same with the Straits of Fuca, as he was satisfied no such 
straits existed between 47° and 48°, where they were laid 
down in the charts. He did not, however, venture to cast 
anchor ; and the force of the currents, during the night, swept 
him too far to leeward to allow him to examine it any further. 
Heceta named the northern headland of the bay, C. San Roque ; 
and the southern headland, C. Frondoso ; and to the bay itself 
he gave the name of the Assumption, though, in the Spanish 
charts, according to Humboldt, it is termed "I'Ensenada de 
Ezeta," Heceta's Inlet. Heceta likewise gave the name of 
C Falcon to a headland in 45° 43', known since as C. Look- 
out ; and continuing his course to the southward along the 
coast, reached Monterey on August 30th. 

De la Bodega, in the mean time, had stretched out to 56°, 
when he unexpectedly made the coast, 135 leagues more to 
the westward than Bellin's chart had led him to expect. He 
soon afterwards discovered the lofty conical mountain in King 
George III.'s Archipelago, to which he gave the name of San 
Jacinto, and which Cook subsequently called Mount Edge- 
cumb, and having reached the 58th parallel, turned back to 
examine that portion of the coast, where the Rio de los Reyes 
was placed in the story of the adventures of Admiral Fonte. 
Having looked for this fabulous stream in vain, they landed 
and took possession of the shores of an extensive bay, in 55° 
30', in the Prince of Wales' Archipelago, which they named 
Port Bucareli, in honour of the Viceroy. Proceeding south- 
ward, they observed the Entrada de Perez, north of Queen 
Charlotte's Island ; but, though coasting fiom 49° within a 
mile of the shore, according to Maurelle's account, they over- 
looked the entrance of Fuca's Straits. A little below 47° un- 
favourable winds drove them off the coast, which thev made 



58 

once more in 45° 27' ; from which parallel they searched in 
vain to 42° for the river of Martin d'Aguilar. In the latitude 
of 38° 18' they reached a spacious and sheltered bay, which 
they had imagined to be Port San Francisco ; but it proved 
to be a distinct bay, not yet laid down in any chart, so De la 
Bodega bestowed his own name upon it, having noted in his 
journal that it was here that Sir Francis Drake careened his 
ship. Vancouver, however, considered the bay of Sir Francis 
Drake to be distinct from this bay of Bodega, as well as from 
that of San Francisco. 

Expeditions had been, in the mean time, made by direction 
of the Hudson's Bay Company, across the northern regions of 
North America, to determine, if possible, the existence of the 
supposed northern passage between Hudson's Bay and the 
Pacific Ocean. Mr. Samuel Hearne, one of the Company's 
agents, in 1771, in the course of one of these journeys, suc- 
ceeded in tracing a river, since known as the Coppermine 
River, to a sea, where the flux and reflux of the tide was ob- 
served. Hearne calculated the mouth of this river to be in 
about 72° north latitude ; and he had assured himself, by his 
own observations, that no channel connecting the two seas 
extended across the country which he had traversed. It ap- 
pears that a parliamentary grant of 20,000/. had been voted, 
in 1745, by the House of Commons, for the discovery of a 
north-west passage, through Hudson's Bay, by ships belong- 
ing to his Britannic Majesty's subjects ; and in 1776, this re- 
w^ard was further extended to the ships of his Majesty, which 
might succeed in discovering a northern passage between the 
two oceans, in any direction or under any parallel north of 
62°. The Lords of the British Admiralty, in pursuance of 
Hearne's report, determined on sending out an expedition to 
explore the north-easternmost coast of the Pacific ; and Cap- 
tain James Cook, who had just returned from an expedition in 
the southern hemisphere, was ordered, in 1776, to proceed 
round the Cape of Good Hope to the coast of New Albion, in 
45 degrees. He was besides directed to avoid all interfer- 
ence with the establishments of European Powers : to explore 
the coast northward, after reaching New Albion, up to 65° ; 
and there to commence a search for a river or inlet which 
might communicate with Hudson's Bay. He was further 
directed to take possession, in the name of his sovereign, of 
any countries which he might discover to be uninhabited ; and 
if there should be inhabitants in any parts not yet discovered 



NOOTKA sourfD. 59 

by other European powers, to take possession of them, with 
the consent of the natives. No authentic details of any dis- 
coveries had been made public by the Spaniards since the ex- 
pedition of Viscaino, in 1602, though rumours of certain voy- 
ages along the north-west coast of America, made by order 
of the viceroy of New Spain, in the two preceding years, had 
reached England shortly before Cook sailed ; but the informa- 
tion was too vague to afford Cook any safe directions. 

The expedition reached the shores of New Albion in 44° 
north, and thence coasted at some distance off up to 48°. Cook 
arrived at the same conclusion which Heceta had adopted, 
that between 47° and 48° north there were no Straits of Fu- 
ca, as alleged. He seems to have passed unobserved the arm 
of the sea a little further northward, having most probably 
struck across to the coast of Vancouver's Island, which trends 
north-westward. Having now reached the parallel of 49° 
30', he cast anchor in a spacious bay, to which he gave the 
name of King George's Sound ; but the name of Nootka, bor- 
rowed from the natives, has since prevailed. It has been 
supposed, as already stated, that Nootka Sound was the bay 
in which Perez cast anchor, and which he named Port San 
Lorenzo ; and that the implements of European manufacture, 
which Captain Cook, to his great surprise, found in the pos- 
session of one of the natives, were obtained on that occasion 
from the Spaniards. The first notification, however, of the 
existence of this important harbour, dates from this visit of 
Captain Cook, who continued his voyage northward up to the 
59th parallel, and from that point commenced his survey of 
the coast, in the hope of discovering a passage into the Atlan- 
tic. It is unnecessary to trace his course onward. Although 
Spanish navigators claim to have seen portions of the coast 
of North America between the limits of 43° and 55° prior to 
his visit, yet their discoveries had not been made public, and 
their observations had been too cursory and vague to lead to 
any practical result. Captain Cook is entitled, beyond dis- 
pute, to the credit of having first dispelled the popular errors 
respecting the extent of the continents of America and Asia, 
and their respective proximity : and as Drake, according to 
Fletcher, changed the name of the land south of Magellan's 
Straits from Terra Incognita to Terra nunc bene Cognita, so 
Cook was assuredly entitled to change the name of the North 
Pacific Sea from " Mare Incognitum" to " Mare nunc bene 
Coffnitum." 



60 RUSSIAN ESTABLISHMENTS. 

On the return of the vessels engaged in this expedition to 
England, where they arrived in October, 1780, it was thought 
expedient by the Board of Admiralty to delay the publication 
of an authorised account, as Great Britain was engaged in 
hostilities with the United States in America, and with France 
and Spain in the Old World. The Russians in the mean time 
hastened to avail themselves of the information which they 
had obtained when Captain King, on his way homewards by 
China, touched at the harbor of Petropawlosk, and an associ- 
ation was speedily formed amongst the fur merchants of Sibe- 
ria and Kamtchatka to open a trade with the shores of the 
American continent. An expedition was in consequence dis- 
patched in 1783, for the double purpose of trading and explor- 
ing, and several trading posts were established between Ali- 
asUa and Prince William's Sound. Mr. Greenhow (p. 161) 
assigns to this period the Russian establishment on the island 
of Kodiak, near the entrance of the bay called Cook's Bay, 
but the Russian authorities refer this settlement to a period as 
remote as 1763. (Letter from the Chevalier de Poletica to 
the Secretary of State at Washington, 2Sth February, 1822. 
British and Foreign State Papers, 1821-22, p. 484.) The 
Russian establishments seem to have extended themselves in 
1787, and the following year as far as Admiralty Bay, at the 
foot of Mount Elias. The publication, however, of the jour- 
nals of Cook's expedition, which took place in 1784-5, soon 
introduced a host of rival traders into these seas. Private 
expeditions were dispatched from Macao, under the Portu- 
guese flag, in 1785 and 1780, and under the flag of the East 
India Company in 1786. In the month of June of this latter 
year. La Perouse, in command of a French expedition of dis- 
covery, arrived ofl'the coast, and cast anchor in a bay near 
the foot of Mount Fairweather, in about 59°, which he named 
Port des Francais. He thence skirted the coast southward 
past Port Bucareli, the western shores of Queen Charlotte's 
Island, and Nootka, and reached Monterey in September, 
where having stayed sixteen days, he bade adieu to the north- 
west coast of America. La Perouse seems first to have sus- 
pected the separation of Queen Charlotte's Island from the 
continent, but as no account of the results of this expedition 
was published before 1797, other navigators forestalled him 
in the description of nearly all the places which he had 
visited. 

In the August of 1785, in which year La Perouse had sail- 



KING George's sound company. 61 

ed, an association in London, styled the King George's Sound 
Company, dispatched two vessels under the command of Cap- 
tains Dixon and Portlock, to trade with the natives on the 
American coast, under the protection of licences from the 
South Sea Company, and in correspondence with the East In- 
dia Company. They reached Cook's River in July 1786, 
where they met with Russian traders, and intended to winter 
in Nootka Sound, but were driven off the coast by tempestu- 
ous weather to the Sandwich Isles. Returning northward in 
the spring of 1787, they found Captain Meares, with his vessel 
the Nootka, frozen up in Prince William's Sound. Meares 
had left Calcutta in January 1786, whilst his intended con- 
sort, the Sea Otter, commanded by Captain Tipping, had been 
dispatched to Malacca, with instructions to proceed to the 
north-west coast of America, and there carry on a fur trade in 
company with the Nootka. Both these vessels sailed under 
the flag of the East India Company. Meares, after having 
with some difficulty got clear of the Russian establishment at 
Kodiak, reached Cook's River soon after Dixon and Portlock 
had quitted it, and proceeded to Prince William's Sound, 
where he expected to meet the Sea Otter ; but Captain Tip- 
ping and his vessel were never seen by him again after leav- 
ing Calcutta, though Meares was led by the natives to sup- 
pose that his consort had sailed from Prince William's Sound 
a few days before his arrival. He determined, however, to 
pass the winter here, in preference to sailing to the Sandwich 
Isles, lest he should be prevented returning to the coast of 
America. Here indeed the severity of the cold, coupled with 
scurvy, destroyed more than half of his crew, and the survi- 
vors were found in a state of extreme distress by Dixon and 
Portlock, on their return to the coast in the following spring. 

We have now reached a period when many minute and 
detached discoveries took place. Prince William's Sound 
and Nootka appear to have been the two great stations of the 
fur trade, and it seems to have been customary, in most of the 
trading expeditions of this period, that two vessels should be 
dispatched in company, so as to divide the labor of visiting the 
trading posts along the coasts. Thus, whilst Portlock remain- 
ed between Prince William's Sound and j^Iount St. Eiias, Dix- 
on directed his course towards Nootka, and being convinced 
on his voyage, from the reports of the natives, that the land 
between 52° and 54° was separated from the continent, as La 
Perouse had suspected, he did not hesitate to call it Queen 

4 



62 MEAKES AND TIPPING. 

Charlotte's Island, from the name of his vessel, and to give to 
the passage to the northward of it, which is marked on Spa- 
nish maps as the Entrada de Perez, the name of Dixon's En- 
trance. Before Dixon and Portlock quitted these coasts, in 
1787, other vessels had arrived to share in the profits of the 
fur trade. Amongst these the Princess Royal and the Prince 
of Wales had been despatched from England, by the King 
George's Sound Company, under command of Captains Dun- 
can and Colnett ; whilst the Imperial Eagle, under Captain 
Barclay, an Englishman, displayed in those seas for the first 
time the flag of the Austrian East India Company. To a boat's 
crew belonging to this latter vessel Captain Meares assigns 
the discovery of the straits in 48° 30', to which he himself gave 
in the following year the name of Juan de Fuca, from the old 
Greek pilot, whose curious story has been preserved in Pur- 
chas' Pilgrims. (Introduction to Meares' Voyages, p. Iv.) 
Meares had succeeded in returning to Macao with the Nootka, 
in October, 1787. In the next year he was once more upon 
the American coast, as two other vessels, named the Fe- 
lice and Iphigenia, were despatched from Macao, under 
Meares and Captain Douglas respectively, the former being 
sent direct to Nootka, the latter being ordered to make for 
Cook's River, and thence proceeding southward to join her 
consort. Meares, in his Observations on a North-west Pas- 
sage, states, that Captain Douglas anticipated Captain Dun- 
can, of the Princess Royal, in being the first to sail through 
the Channel which separates Queen Charlotte's Island from 
the main land, and thereby confirming the suppositions of La 
Perouse and Dixon. Captain Duncan, however, appears at 
all events to have explored this part of the coast more care- 
fully than Douglas had done, and he first discovered the group 
of small islands, which he named the Prince of Wales' Archi- 
pelago. The announcement of this discovery seemed to some 
persons to warrant them in giving credit once more to the ex- 
ploded story of Admiral Fonte's voyage, and revived the ex- 
pectation of discovering the river, which the admiral is de- 
scribed to have ascended near 53° into a lake communicating 
with the Atlantic Ocean. It is almost needless to observe, 
that these expectations have never been realised. 

The names of several vessels have been omitted in this 
brief summary, which were engaged in the fur trade subse- 
quently to the year 1785. Two vessels, however, require no- 
tice, — the Washington under Captain Gray, and the Colum- 



GRAY AND KENDRICK. 63 

bia under Captain Kendrick, which were despatched from 
Boston, under the American flag, in August, 1787. Captain 
Gray reached Nootka Sound, on Sept. 17, 17-8, and found 
Meares preparing to launch a small vessel called the North- 
w^est America, which he had built there. The Columbia 
does not appear to have joined her consort till after the de- 
parture of Meares and his companions. Meares himself set 
sail in the Felice for China, on Sept. 23, whilst ihe Iphigenia 
proceeded with the North-west America to the Sandwich Is- 
lands, and wintered there. In the spring of 1789, the two 
latter vessels returned to Nootka Sound, and found the Co- 
lumbia had joined her consort the Washington, and both had 
wintered there. The North-west America was despatched 
forthwith on a trading expedition northward, whilst the Iphi- 
genia remained at anchor in Nootka Sound. 

Events were now at hand which were attended with very 
important consequences in determining the relations of Spain 
and Great Britain towards each other in respect to the trade 
with the natives on their coasts, and to the right of forming 
settlements among them. These will fitly be reserved, as in- 
troductory to the Convention of the Escurial, which will be 
discussed in a subsequent Chapter. 



64 



CHAPTER IV. 

ON THE PRETENDED DISCOVERIES OF THE NORTH-WEST 
COAST. 

Memoir of Lorenzo Ferrer Maldonado, in 1588. — Voyage of the Descu- 
bierta and Atrevida, in 1 791. — Tale of Juan de Fuca, in 1592. — Voy- 
ages of Mcarcs, Vancouver, and Lieutenant Wilkes. — Letter of Admi- 
ral Bartoleme Fonte or de Fuentes, in 1640. — Memoir of J. N. de 
I'Isle and Ph. Buache, in 1750. — California discovered to be a Penin- 
sula in 1540; reported to be an Island in 1620 ; re-explored by the 

Jesuit Kuhn and others, in 1701-21 Maps of the sixteenth and 

seventeenth Centuries. — Fontc's Letter, a jeu-d'esprit of Petiver, the 
Naturalist. 

The general belief in the existence of a North-west passage 
from the Atlantic to the Pacific Ocean in the direction of Gas- 
par de Cortereal's reported Straits of Anian, led to the circu- 
lation of many false accounts of the discovery of the desired 
channel. The most celebrated fictions of this class seem to 
have originated with individuals who hoped to secure, through 
their pretended knowledge and experience, future employment, 
as well as immediate emolument. A memoir of this kind is 
reported to have been laid before the Council of the Indies at 
Seville, in 1609, by Lorenzo Ferrer Maldonado, who profess- 
ed to have sailed in 158y from Lisbon to the coast of Labra- 
dor, and thence into the South Sea through a channel in 60'' 
north latitude, corresponding to the Strait of Anian, accord- 
ing to ancient tradition. He petitioned, in consequence, that 
he might be rewarded for his services, and be entrusted with 
an expedition to occupy the Strait of Anian, and defend the 
passage against other nations. His cotemporaries, accord- 
ing to the author of the Introduction to the Voyage of the Su- 
til and Mexicana, were men of more judgment and intelli- 
gence than some of the writers of the 18th century. The 
former at once discovered, by personal examination of the au- 
thor, the fictitious character of his narrative, and rejected his 
proposal. Two copies of this memoir are supposed to exist ; 
one of these being preserved in the library of the Duke of 
Infantado at Madrid, the other in the Ambrosian Library at 



DESCUBIERTA AND ATREVIDA. 65 

Milan. The former of these is considered by the author of 
the Introduction to be certainly a cotemporaneous, and per- 
haps the original, copy of the memoir: the Ambrosian manu- 
script, on the other hand, has been pronounced, in an article 
in the London Quarterly Review for October, 1816, to be 
" the clumsy and audacious forgery of some ignorant Ger- 
man," from the circumstance of fifteen leagues to the degree 
being used in some of the computations. To the same pur- 
pose Capt. James Burney, in the fifth volume of his Voyages, 
published in 1817, observes, that "it must not be omitted 
that the reckoning in the narrative is in German leagues. It 
is said, ' from the latitude of 64° you will have to sail 120 
leagues to the latitude of 72°, which corresponds with the 
German league of 15 to a degree, and not with the Spanish 
league of 17j to a degree, by which last the early Spanish 
navigators were accustomed to reckon. From this peculiari- 
ty in the narrative it may be conjectured, that the real author 
was a Fleming, who probably thought he could not better ad- 
vance his spurious offspring, than by laying it at the door of 
a man who had projected to invent a compass without varia- 
tion," as Maldonado professed to do to the Council of the In- 
dies, according to Antonio Leo in his Bibliotheca Indica. 

Allusions had been occasionally made to this work by 
Spanish writers in the 17th century, amongst others by De 
Luque, the author of the " Establecimientos Ultramarines de 
las Naceones Europeas." It was not, however, till so late a 
period as 1790 that the attention of men of science was drawn 
to the Madrid manuscript by J. N. Buache, the geographer of 
the King of France, in a paper read before the Academy of 
Sciences at Paris in that year. Captain Burney states, that 
the manuscript had been brought to notice shortly before by 
M. de Mendoza, a captain in the Spanish navy, who was em- 
ployed in forming a collection of voyages for the use of that 
service. M. Buache, who had succeeded D'Anville as Geo- 
grapher Royal in 1768, followed the geographical system of 
Ph. Buache, his relative and predecessor, and, like him, clung 
fondly to questionable discoveries. He had been employed 
to prepare instructions for the expedit^oi of La Perouse, and 
thus his attention had been especially drawn to voyages of 
discovery on the north-west coast of America. He declared 
himself in his memoir so strongly in favor of the genuineness 
of the manuscript, and of the good faith of Maldonado, that 
the Spanish government, in order that the question might be 



66 JUAN DE FUCA. 

definitively set at rest, directed its archives to be searched, 
and the manuscript in the library of the Duke of Infantado to 
be carefully examined, and at the same time gave orders that 
the corvettes Descubierta and Atrevida, which were fitting 
out at Acapulco for a voyage round the world, should explore 
the coasts and port which Maldonado pretended to have dis- 
covered in the South Sea. The archives, however, furnished 
ample evidence of the correctness of the ancient opinion that 
Maldonado was an impostor, and the expedition of the cor- 
vettes, which sailed in 1791, confirmed this fact beyond dis- 
pute. A memoir to that effect, founded upon their observa- 
tions, was published in 1797, by Don Ciriaco Cevallos, who 
had accompanied the expedition, to prove the utter falsity of 
Maldonado's story. 

It was, however, once more revived by the discovery of the 
Ambrosian manuscript in 1812 by Carlo Amoretti. This is 
said to give a more succinct account than the Madrid docu- 
ment, and it has been thought by some to be an abridgment 
of it. The article in the Quarterly Review above alluded to 
was occasioned by its appearance, and to the curious will 
furnish ample information. The Milan account of the voyage 
may be referred to in the fifth volume of Burney's History of 
Voyages. The Madrid document will be found in Barrow's 
Chronological History of Voyages in the Arctic Regions. 

A much more plausible narrative was published in 1625, 
in the third volume of " The Pilgrims," by Purchas, the suc- 
cessor of Hakluyt as the historian of maritime enterprises. 
It is entitled " A Note made by me, Michael Lock the elder, 
touching the Strait of Sea, commonly called Fretum Anian, 
in the South Sea, through the North-west Passage of Meta 
Incognita." The writer purported to give an account of 
what had been communicated to him at Venice, in April, 
1596, by an ancient Greek pilot, commonly called Juan de 
Fuca, but properly named Apostolos Valerianus, who repre- 
sented himself to have been taken in a Spanish ship by Cap- 
tain Candish, and to have thereby lost 60,000 ducats, and to 
have been at another time sent by the Viceroy of Mexico to 
discover and fortify the Straits of Anian. His tale was to this 
effect : " That shortly afterwards, having been sent again, 
in 1592, by the Viceroy of Mexico, with a small caravel and 
pinnace, armed with mariners only, he followed the coast of 
North America until he came to the latitude of 47°, and there 
finding that the land trended east and north-east, with a broad 



NORTH-WEST PASSAGE. C7 

inlet of sea between 47 and 48 degrees of latitude, he entered 
thereinto, sailing therein more than twenty days, and found 
that land trending still sometimes north-west and north-east 
and north, and also east, and south-eastward, and very much 
broader sea than was at the said entrance, and that he passed 
by divers islands in that sailing. And that at the entrance of 
this said strait, there is 07i the north-west coast thereof a great 
headland or island, with an exceeding high pinnacle or spired 
rock, like a pillar, thereupon. 

" Also, he said, he went on land in divers places, and there 
he saw some people on land, clad is beasts' skins ; and that 
the land is very fruitful, and rich of gold, silver, pearls, and 
other things, like new Spain. 

" And also, he said, that he being entered thus far into the 
said strait, and being come into the North Sea already, and 
finding the sea wide enough everywhere, and to be about thir- 
ty or forty leagues wide in the mouth of the straits, where he 
entered, he thought that he had now well discharged his office, 
and that not being armed to resist the force of the savage peo- 
ple that might happen, he therefore set sail, and returned 
homewards again towards New Spain, where he arrived at 
Acapulco, anno 1592, hoping to be rewarded by the Viceroy 
for the service done in the said voyage. 

" Also, he said that, after coming to Mexico, he was great- 
ly welcomed by the Viceroy, and had promises of great re- 
ward ; but that having sued there for two years, and obtained 
nothing to his content, the Viceroy told him that he should be 
rewarded in Spain of the King himself very greatly, and will- 
ed him therefore to go to Spain, which voyage he did per- 
form. 

" Also, he said, that when he was come into Spain, he was 
welcomed there at the King's court ; but after long suit there 
also, he could not get any reward there to his content. And 
therefore at length he stole away out of Spain, and came into 
Italy, to go home again and live among his own kindred and 
countrymen, he being very old. 

" Also, he said, that he thought the cause of his ill reward 
had of the Spaniards, to be for that they did understand very 
well that the English nation had now given over all their voy- 
ages for discovery of the North-west Passage, wherefore they 
need not fear them any more to come that way into the South 
Sea, and therefore they needed not his service therein any 
more. 



68 NORTH-WEST PASSAGE. 

"Also, he said, that understanding llie nohle mind of the 
Queen of England, of her wars against the Spaniards, and 
hoping that her majesty would do him justice for his goods lost 
by Captain Candish, he would be content to go into England, 
and serve her majesty in that voyage for the discovery perfectly 
of the north-west passage into the South Sea, if she would fur- 
nish him with only one ship of forty tons burthen and a pin- 
nace, and that he would perform it in thirty days time from 
one end to the other of the straits, and he wished me so to 
write to England." 

As this asserted discovery was one upon which the Span- 
ish commissioner, in the negotiations antecedent to the Trea- 
ty of the Floridas, relied to support the claim of the Spanish 
crown to the north-west coast of America, and as authors of 
late whose opinions are entitled to respect, such as Fieurieu, 
and Mr. Greenhow, have inclined to admit the general truth 
of the account, the substantial part of it has been quoted at 
full length, as it appears both that Fuca's narrative, if we ad- 
mit it to be genuine, does not accord, in respect to any sub- 
stantial fact, with the authentic reports of subsequent voya- 
ges, and that the object of the fiction is patent on the face of 
the story. 

The object of the Greek pilot was evidently to obtain, upon 
the faith of his narrative, employment from the Queen of Eng- 
land ; and as, from his own statement, he was aware that the 
spirit of discovery was for the moment languid amongst the 
English nation, he represented the country as " very fruitful 
and rich of gold, silver, pearls, and other things, like New 
Spain." This exaggeration of the probable profits of the un- 
dertaking would not perhaps alone disentitle the narrator to 
credit in respect to the other circumstances of his voyage, 
though his integrity in making the communication might there- 
by become open to question : but when we look to the assert- 
ed facts of his voyage, the truth or falsehood of which must 
be conclusive as to the character of the narrative itself, we 
find that they do not correspond in any respect with ascer- 
tained facts. The straits to which Meares gave the name of 
Juan de Fuca in 1788, are between the 48th and 49th paral- 
lel. Mr. Greenhow considers that the difference in the posi- 
tion is sufficiently slight as to be within the limits of suppos- 
able error en the part of the Greek pilot; and certainly, if this 
were the only difficulty, it might not be conclusive against his 
veracity. But the straits which he professed to have discov- 



SILENCE OF SPANISH WRITERS. ^9 

ered were from 30 to 40 leagues wide at the mouth where he 
entered, and according to his story he sailed through them in- 
to the North Sea, and upon the faith of this he offered to per- 
fect his discovery of the north-west passage into the South 
Sea for the Queen of England, and to perform it in thirty days 
time from one end to the other of the straits. Now this de- 
scription is so totally at variance with the real character of 
any straits on the west coast of America, that the happy co- 
incidence of trifling circumstances can hardly be considered 
sufficient to turn the scale in its favor. Amongst the latter, 
the existence of a pillar has been alleged, as corresponding 
with De Fuca's account. Meares, for instance, on approach- 
ing the straits from the north, speaks " of a small island, situ- 
ated about two miles from the southern land, that formed the 
entrance of this strait, near which we saw a very remarkable 
rock, that wore the form of an obelisk, and stood at some 
distance from the island," (p. 153,) which, in his Observa- 
tions on a North-west Passage (p. Ixi.) he seems to consider 
to be the pinnacle rock of De Fuca ; but unfortunately De 
Fuca has placed his " island with an exceeding high pinna- 
cle or spiral rock " on the north-icest coast, at the entrance of 
the strait, instead of on the southern shore. Vancouver, on 
entering the straits, failed himself to recognize any rock as 
corresponding to the pinnacle rock which Mr. Meares had 
represented, but he observes that a rock wdthin Tatooche's 
Island, on the southern side of the entrance, which is united 
to the main land by a ledge of rocks, over w hich the sea 
breaks violently, w^as noticed, and supposed to be that repre- 
sented as De Fuca's pinnacle rock : " this, however, was 
visible only for a few minutes, from its being close to the 
shore of the main-land, instead of lying in the entrance of 
the straits, nor did it correspond with that which has been so 
described." On the other hand. Lieutenant Wilkes, in his 
Account of the United States Exploring Expedition, says, '''•In 
leaving De Fuca's Straits, I anxiously watched for De Fuca's 
Pillar, and soon obtained a sketch of it ;" but he does not 
state whether he meant the pillar which Meares observed on 
the southern side, and called De Fuca's Pillar, or one which, 
according to the Greek pilot, should have formed a prominent 
object on the north-western coast of the strait. 

It is not unimportant to observe, that there is no Spanish 
writer w^ho speaks of De Fuca or his discovery : that neither 
in any private archives in Spain, nor in the public archives 

4* 



70 BARTOLEME FONTE. 

of the Indies at Seville, is there any notice of this celebrated 
navigator or of his important expedition, which the author of 
the Introduction to the Voyage of the Sutil and Mexicana ob- 
serves is the more remarkable, from the great number of 
other voyages and expeditions of the same period preserved in 
the archives, which have escaped the notice of contempora- 
ry writers ; and, what is perhaps still more conclusive, that 
Humboldt, in his account of New Spain, (1. iii., ch. viii.,) 
states, that in spite of all his researches he had not been able 
to find throughout New Spain a single document in which the 
name of the pilot De Fuca occurs. 

The whole of these latter observations apply with equal force 
to the voyage of Admiral Bartoleme Fonte or de Fucntes, 
which purposes to have been performed in 1640 ; the narra- 
tive, however, did not make its appearance till 1708, when it 
was published in London, in two parts, in " The Monthly 
Miscellany, or Memoirs of the Curious." The mode in which 
it was ushered into public notice would alone be sufficient to 
expose it to considerable suspicion, and the gross absurdities 
with which it is replete would have at once exempted it from 
any serious criticism, had not the Spanish commissioner, in 
the negotiations already alluded to, and of which a full ac- 
count will be given in a subsequent place, rested upon it the 
territorial title of Spain to the north-west coast, up to 55° of 
north latitude. Fonte, according to the narrative, sailed with 
four vessels from Callao into the North Pacific, with orders 
from the Viceroy of Peru to intercept certain vessels which 
had sailed from Boston in New England, with the object of 
exploring a north-west passage. On arriving at C. St. Lucas, 
at the south point of California, he despatched one of his ves- 
sels " to discover whether California was an island or not, 
(for before, it was not known whether it was an island or a 
peninsula.") He thence coasted along California to 26° of 
north latitude, and having a steady gale from the S.S.E., in 
the interval between May 26, and June 14, " he reached the 
River los Reyes in 53° of north latitude, not having occasion 
to lower a top-sail in sailing 886 leagues N.N.W., 410 
leagues from Port Abel to C. Blanco, 456 leagues to Rio de 
los Reyes, having sailed about 260 leagues in crooked chan- 
nels, amongst islands named the Archipelagus de St. Lazarus, 
where his ships' boats always sailed a mile a-head, sounding, 
to see what water, rocks, and sands there was." "They had 
two Jesuits with them, that had been on their mission at 66"^ 



DE l'isle and CUACHE. 71 

of N.L., and had made curious observations." Fonte ascend- 
ed the Rio de los Reyes in his ships to a large lake, which 
he called Lake Belle. Here, he says, he left his vessels and 
proceeded down another river, passing eight falls, in all 32 
feet perpendicular, into a large lake which he named Do 
Fonte. Thence he sailed out through the Estrecho de Ron- 
quillo into the sea, where they found a large ship where the 
natives had never seen one before, from a town called Boston, 
the master of which. Captain Shaply, told him that his owner 
was " a fine gentleman, and major-general of the largest col- 
ony in New England, called the Maltechusets." Having ex- 
changed all sorts of civilities and presents with this gen- 
tleman, the admiral went back to his ships in Lake Belle, 
and returned by the Rio de los Reyes to the South Sea. One 
of his officers had in the mean time ascended another river, 
which he named Rio de Haro, in the lake Velasco, in 61°, 
whence he sailed in Lidian boats as far north as 77°. Here 
he ascertained that there was no communication out of the 
Spanish or Atlantic Sea by Davis' Straits, from one of his own 
seamen, who had been conducted by the natives to the head 
of Davis' Strait, which terminated in a fresh lake of about 
30 miles in circumference, in 80° N.L. He himself in the 
meantime had sailed as far north as 79°, and then the land 
trended north, and the ice rested on the land. The result of 
this expedition was, that they returned home, " having found 
there was no passage into the South Seas by what they call 
the North-west Passage." 

Such is the substance of this rather dull story, which may 
be read in full in the third volume of Burney's History of 
Voyages in the South Sea, p. 190. Mr. Greenhow (p. 84) 
observes, that " the account is very confused and badly writ- 
ten, and is filled with absurdities and contradictions, which 
should have prevented it from receiving credit at any time 
since its appearance : yet, as will be shown, it was seriously 
examined and defended, so recently as in the middle of the 
last century, by scientific men of great eminence, and some 
faith continued to be attached to it for many years afterwards." 

Amongst its defenders the most conspicuous were J. N. de 
risle, the brother of V/illiam de l'isle, and Philippe Buache, 
the geographer of the French King, the predecessor of J. N. 
Buache, who has already been mentioned as the author of a 
memoir in defence of Maldonado's narrative. De l'isle pre- 
sented to the Academy of Sciences, in 1750, a memoir " sur les 



72 vaugondy's reply. 

nouvclles decouvertes au nord de la mer du Sud," with a map 
prepared by Ph. Buache, to represent these discoveries. The 
communication was in other respects of great importance, as 
it contained the first authentic account ot'the discoveries late- 
ly made by Behring and Tchiricoff, in 1741. It is not stated 
from what source De I'lsle derived the copy of Fonte's letter, 
w^hich seems to have come into his possession accidentally at 
St. Petersburg, during the absence of the Russian expedition : 
it was not, however, till his return to France in 1747, that he 
examined it in company with Ph. Buache. They were agree- 
ably surprised to find that it accorded with Buache's own con- 
jectures, that it harmonised in many respects with the discov- 
eries of the Russians. In consequence, Buache laid down 
in his new map a water communication between the Pacific 
Ocean and Hudson's Bay. Voltaire, relying on the authority 
of De risle, maintained in his History of Russia, published in 
1759, that the famous passage so long sought for had been at 
last discovered. The Academy, however, received Fonte's 
narrative with discreet reserve ; and observed, that it required 
more certain proofs to substantiate it. 

The author of the Introduction to the Voyage of the Sutil 
and Mexicana states, that the Spanish government, on the 
representation of the French geographers, instituted a careful 
search into the archives of the Indies in New Spain, as well 
as into the archives of Peru, and likewise into the archives at 
Seville, Madrid, Cadiz, and other places, but that not the 
slightest allusion to De Fonte could be anywhere traced. 
This result was made known by Robert de Vaugondy, in his 
reply to Buache, intitled " Observations Critiques sur les 
nouvelles Decouvertes de I'Amiral Fuentes, 8vo. 1753 ;" 
and the author of the Noticia di California, published in Ma- 
drid, in 1757, confirmed Vaugondy 's announcement. 

It is unnecessary to observe, that the experience of subse- 
quent navigators has failed to confirm the narrative of De 
Fonte. There is one passage in the narrative which seems 
almost of itself to be sufficient to condemn the story. The 
admiral is made to state, "that he despatched one of his ves- 
sels to discover whether California was an island or not ; for 
before it was not known whether California was an island or 
a peninsula." Now the Californian Gulf had been complete- 
ly explored by Francisco de Ulloa, in 1539, who ascertained 
the fact of the junction of the peninsula to the main land, near 
the 32d degree of latitude ; and again by Fernando de Alar- 



GEOGRAPHY OF CALIFORNIA. 73 

con, in 1540, who ascended a great river at the head of the 
Gulf of California, supposed to be the Colorado. A series of 
excellent charts were drawn up by Domingo del Castillo, 
Alarcon's pilot, a fac-simile of which Mr. Greenhow (p. 61) 
states may be found in the edition of the letters of Cortez, 
published at Mexico in 1770, by Archbishop Lorenzana. 
The shores of the gulf, and of the west side of California, to 
the 30th degree of latitude, were there delineated with a sur- 
prising approach of accuracy. It is not a reasonable suppo- 
sition that the Admiral of New Spain and Peru, who must 
have had ready access to the archives of the Indies at Mexico, 
should have expressed himself in a manner which argued a to- 
tal ignorance of the previous discoveries of his countrymen ; 
but it was very probable that a contributor to the Monthly 
Miscellany should stumble upon this ground, from a notion 
having been revived in Europe, about the middle of the 17th 
century, that California was an island. 

Humboldt, in his Essai Politique sur la Nouvelle Espagne, 
1. iii., c. yiii., states, that when the Jesuits Kiihn, Salvatierra, 
and Ugarte, explored, in detail, during the years 1701-21, 
the coasts of the Gulf of California, it was thought in Eu- 
rope to have been for the first time discovered that California 
was a peninsula. But, in his Introduction Geographique, 
he observes, that in the sixteenth century no person in Mex- 
ico denied this fact ; nor was it till the seventeenth century 
that the idea originated that California was an island. Dur- 
ing the seventeenth century, the Dutch freebooters were 
amongst the most active and inveterate enemies of Spain in 
the New World ; and having established themselves in the 
bay of Pichilingue, on the east coast of California, from 
which circumstance they received the name of "Pichilin- 
gues," they caused great embarrassment to the Spanish vice- 
roys from their proximity to the coasts of Mexico. To these 
adventurers the origin of the notion, that California was sepa- 
rated from the main land, has been referred by some authors ; 
but Mr. Greenhow (p. 94) states, that it was to be traced to the 
captain of a Manilla ship, in 1620, who reported that the as- 
serted river of D'Aguilar was the western mouth of a chan- 
nel which separated the northern extremity of California from 
the main land. A survey of the lower part of the peninsula 
was executed by the Governor of Cinaloa, and the Jesuit Ja- 
cinto Cortes, in pursuance of the orders of the Duke of Ksca- 
lona, who was Viceroy during 1640-42, about the very time 



74 VAUIATIONS IN MAPS. 

when Fonte purported to have sailed. They did not, how- 
ever, go to the head of the gulf; and Humboldt informs us, 
that, during the feeble reign of Charles II. of Spain, 1G55- 
1700, several writers had begun to regard California as a 
cluster of large islands, under the name of" Islas Carolinas." 
Thus we find in the maps of this period, in those for example 
of Sanson, Paris, 1650 ; of Du Val, geographer to the King 
of France, Abbeville, 1655 ; of Jenner, London, 1666 ; of 
De Wit, Amsterdam ; of Vischer, Schenkius, Herman, Moll, 
and others, which are in the King's Library at the British 
Museum, California is depicted as an island ; and in Jenner's 
Map, in which C. Blanco is the northernmost headland of 
California, there is this note : — " This California was in times 
past thought to have been a part of the continent, and so 
made in all maps ; but, by further discoveries, was found to 
be an island, long 1700 leagues." 

On the other hand, the maps of the later part of the six- 
teenth, and the earlier part of the seventeenth centuries, such 
as those by Ortelius, the King of Spain's geographer, pub- 
lished in his Theatrum Orbis Terrarum, first edited in 1570, 
the two maps adopted by Hakluyt in the respective editions 
of his voyages, in 1589 and 1600, that of Le Clerc, 1602, of 
Hondius, which Purchas adopted in his Pilgrims, in 1625, of 
Speed, 1646, and that of Blaew in his Novus Atlas of 1648, 
agree in representing California as a peninsula. The single 
passage, therefore, in De Fonte's account, in which he, being 
"then admiral of New Spain and Peru, and now prince (or 
rather president) of Chili, explicitly states that he despatched 
one of his vessels, under the command of Don Diego Penne- 
losa, the nephew of Don Luis de Iiaro," then great minister 
of Spain, " to discover whether California was an island or 
not, for before it was not known whether it was an island or 
a peninsula," seems to point at once to the European origin 
of the tale. Mr. Dalrymple, the well-known secretary of the 
British Admiralty at the time of the Nootka Sound contro- 
versy, who was distinguished as the author of many able 
works on maritime discoveries, considered the story to have 
been a jeu-d'esprit of Mr. James Petiver the naturalist, one 
of the contributors to the Monthly Miscellany, whose taste 
for such subjects was evinced by his collection of MS. ex- 
tracts, since preserved in the British Museum, and whose 
talent for such kind of composition was shown by his Ac- 
count of a Voyage to the Levant, published in the same Mis- 



PETIVER THE NATURALIST. 75 

cellany. It is worthy of remark, that the tale of De Fuca 
and the letter of De Fonte, as they have derived their origin, 
so they have derived their support, from writers foreign to the 
nation in whose favour they set up the asserted discoveries, 
and from them alone. Maldonado, it is true, was a Spaniard, 
but he likewise has found defenders only amongst strangers, 
whilst in his own country his narrative has been condemned 
as an imposture by posterity equally as by his cotempo- 
raries. 



76 



CHAPTER V. 



THE CONVENTION OF THE ESCURIAL. 

The King George's Sound Company, in 1785. — Dixon and Portlock. — 
The Nootka and Sea Otter. — The Captain Cook and Experiment. — Ex- 
pedition of Captain Hanna under the Portuguese Flag. — The FeUce and 
Iphigenia. — The Princesa and San Carlos, in 1788. — Martinez and 
Haro directed to occupy Nootka in 1789. — The Princess Royal ar- 
rives at Nootka. — Colnett arrives in the Argonaut, July 2, 1789, with 
instructions to found a Factory. — lie is seized, with his Vessel, by 
Martinez. — The Princess Royal also seized. — Both vessels sent as 
Prizes to San Bias — The Columbia and Washington allowed to depart. 
— Representation of the Spanish Government to the Court of London. 
— British Reply. — Memorial of Captain Meares. — Message of the Bri- 
tish Crown to Parliament. — British Note of May 5, 1790, to the Spa- 
nish Minister in London. — British Memorial of May 1 6. — Memorial of 
the Court of Spain, July 13. — Declaration of his Catholic Majesty to 
all the Courts of Europe. — Treaty of Utrccnt. — Declaration and Coun- 
ter declaration of July 4. — Spain demands aid from France, according 
to the Family Compact of 1761. — The National Assembly promotes a 
peaceful Adjustment of the Dispute. — Convention between Spain and 
Great Britain signed at the Escurial, Oct. 28, 179U. — Recognition of 
the Claims of Great Britain. 

It has been already observed, that no British subject could 
trade to the west of Cape Horn without a licence from the 
South Sea Company, whilst, on the other hand, to the east- 
ward of the Cape of Good Hope the East India Company 
possessed an exclusive monopoly of commerce. Thus the 
mercantile association which assumed the name of the King 
George's Sound Company, and which despatched two vessels 
under Dixon and Portlock from England in the autumn of 
1785, had found it necessary to obtain licences from the South 
Sea Conij)any for them to proceed by way of Cape Horn, 
and they had likewise entered into an arrangement with the 
East India Company to carry their furs to Canton, and there 
exchange them for teas and other products of China, to be 
conveyed in their turn round the Cape of Good Hope to Eng- 
land. These vessels sailed under the British flag. With a 
similar object, two vessels, the Nootka, under Captain Meares, 
and the Sea Otter, under Captain Tipping, were, by an asso- 



KING George's sound company. 77 

ciation under the patronage of the Governor General of In- 
dia, early in 1788, despatched from Calcutta, under the flag 
of the English East India Company, whilst the Captain Cook 
and the Experiment sailed from Bombay for the same desti- 
nation. An attempt, however, had been made by the British 
merchants in the preceding year, to organise a trade between 
North-west America and China, under the protection of the 
Portuguese flag, so as to evade the excessive harbour dues 
demanded by the Chinese authorities from other European 
nations, by means of licences granted by the Portuguese au- 
thorities at Macao. The first expedition of this kind was 
made by Captain Hanna, in 1785, and was most successful 
as a commercial speculation. In a similar manner, in 1788, 
some British merchants residing in India fitted out the Felice 
and Iphigenia for this trade, and through the interest of Juan 
Cavallo, a Portuguese merchant who had resided for many 
years at Bombay as a naturalised British subject, and traded 
from that place under the protection of the East India Com- 
pany, obtained from the Governor of Macao permission for 
them to navigate under the Portuguese flag, if found conve- 
nient. Meares in his memorial states, that Cavallo merely 
lent his name to the firm, and that he had no real interest in 
the Iphigenia, as on his subsequent bankruptcy the claims of 
his creditors were successfully resisted, and the Iphigenia 
consequently lost the privileges which she had hitherto en- 
joyed in the ports of China, in her character of a Portuguese 
ship. On the other hand, in the obligation which Martinez 
exacted from the master and supercargo of the Iphigenia, 
Cavallo is spoken of as the lawful owner of the vessel in 
whose name they bound themselves. It is possible however 
that they may have bound the ostensible owner on purpose to 
defeat the object of the Spanish commander, instead of the 
real owners ; and assuredly the instructions of the Merchant 
Proprietors to Captain Meares, " commanding the Felice and 
Iphigenia," seem to be at variance with the fact of Cavallo 
being the real owner, as they are addressed to him evidently 
not in the mere character of supercargo, but as having the 
complete control of the vessels, which are expressly stated to 
have been fitted out and equipped by the Merchant Proprie- 
tors : and Meares is directed to defend his vessel against all 
attempts of Russian, English, or Spanish vessels to seize it ; 
to protest, if captured, against the seizure of his vessel and 
cargo ; and to take possession of any vessel that attacked 



t8 THE MERCHANT rROrRIETORS. 

him, as also her cargo, in case he should have the superiority 
in the conflict. (Appendix to Meares' Voyage.) 

To the same etiect, the orders of Captain Meares to Cap- 
tain Douglas, of the Iphigenia, seem to be conclusive that the 
latter had full control over the vessel. " Should you," it is 
observed, " in the course of your voyage, meet with the ves- 
sels of any other nation, you will have as little communica- 
tion with them as possible. If they be of superior force, and 
desire to see your papers, you will show them. You will, 
however, be on your guard against surprise. Should they be 
either Russian, English, Spanish, or any other civilised na- 
tion, and are authorised to examine your papers, you will per- 
mit them, and treat them with civility and friendship. But 
at the same time you must be on your guard. Should they 
attempt to seize you, or even carry you out of your way, you 
will prevent it by every means in your power, and repel force 
by force." 

Captain Douglas, moreover, was directed to note down 
the good behaviour of his officers and crew, and thus afford 
his employers a medium to distinguish merit from worthless- 
ness. "This log-book," they go on to state, " is to be signed 
by yourself. On your return to China you will seal up your 
log-book, charts, plans, &c., &;c., and forward them to Daniel 
Beale, Esq., of Canton, who is the ostensible agent for the 
concern ; and you have the most particular injunctions not to 
communicate or give copies of any charts or plans that you 
may make, as your employers assert a right to all of them, 
and as such will claim them." 

The person to whom such instructions were addressed must 
evidently have had the control of the vessel, and not been 
merely in charge of the cargo. It has been, however, rightly 
observed by Mr. Greenhow, that the papers on board the 
Iphigenia, when seized by Martinez, were written in the Por- 
tuguese language, which Captain Douglas did not under- 
stand, and therefore could not well act upon. The reply to 
this seems to be, that Douglas himself acted upon the letter 
of Captain Meares, inserted in the Appendix to Meares' Voy- 
ages, which embodied in English the substance of the gene- 
ral instructions drawn up for the expedition in Portuguese ; 
and that the ship's papers were in the Portuguese language 
to support her assumed Portuguese character. There is no 
doubt that there was some deception in the transaction, but 



BRITISH COLOURS HOISTED AT NOOTKA. 79 

the deception seems to have been directed rather against the 
Chinese than the Spaniards. 

Whatever may have been the character which was sought 
to be given to the Felice and Iphigenia, Meares appears on 
landing at Nootka to have avowed his British character, by 
hoisting British colours upon the house which he built on 
ground granted to him by Maquilla, the chief of the neigh- 
bouring district, as well as by displaying the English ensign 
on the vessel which he constructed and launched at Nootka. 
It was his intention to employ this vessel, a sloop of about 
forty tons, exclusively on the coast of America, in exploring 
new trading stations, and in collecting furs to be conveyed by 
the other vessels to the Chinese markets. It w^as named the 
North-west America, and was manned by a crew of seven 
British subjects and three natives of China. 

Meares, having left the Iphigenia and North-west America 
to carry on the trade on the American coast, returned with a 
cargo of furs to Macao, in December 1788, and having there 
sold the Felice, associated himself with some merchants of 
London, who had embarked in this commerce under licences 
from the East India and South Sea Companies. Two of their 
vessels, under Dixon and Portlock, which have already been 
alluded to, the Prince of Wales and Princess Royal, had just 
arrived at Canton from the north-west coast of America. 
Meares, apprehending that mutual loss would result from com- 
petition, entered into a formal agreement with Mr. John 
Etches, the supercargo of the two ships, making a joint stock 
of all the vessels and property employed in that trade. The 
new firm immediately purchased an additional ship, named 
the Argonaut, and the Prince of Wales being chartered with 
a cargo of tea to England by the East India Company, the 
Princess Royal and the Argonaut were ordered to sail to 
Nootka Sound under the command of Captain Colnett and 
Captain Hudson. It is indisputable that these vessels were 
sailing under the British flag, and from the instructions de- 
livered to Captain Colnett, the Iphigenia and North-west 
America were henceforward to be under his orders, and to 
trade on account of the Company. He was accordingly di- 
rected to send home Captain Douglas in the Argonaut, and 
to receive from him the Iphigenia and North-west America, 
shifting their crews, &c. 

" We also authorise you," the instructions go on to state, 
" to dismiss from your service all persons who shall refuse to 



80 MARTINEZ AND IIAEO. 

obey your orders, when they are for our benefit, and in this 
case we give you to understand, the Princess Royal, America, 
and other small craft, are always to continue on the coast of 
America. Their oflicers and people, when the time of their 
service is up, must be embarked in the returning ship to Chi- 
na, and on no account whatever will we suffer a deviation 
from these orders." 

Thenceforward, it appears, that the Iphigenia and North- 
west America would be considered as sailing under the same 
character as the other vessels of this Company. 

The steady advance of the Russian establishments along 
the north-west shores of the Pacific, which had become noto- 
rious from the publication of Captain Cook's journals, could 
not but cause great anxiety to the Spanish government. An 
expedition of inquiry was in consequence sent northward from 
the port of San Bias in 178S, consisting of two vessels, the 
Princesa and San Carlos, under the command of Esteban 
Jose Martinez and Gonzalo Lopez de Haro. They were in- 
structed to proceed directly to Prince William's Sound, and to 
visit the various factories of the Russians in that neighbour- 
hood. Having executed their commission, they returned to 
San Bias in the autumn of the same year, and reported the 
results of their voyage to the Viceroy of Mexico. Martinez 
brought back the information that it was the intention of the 
Russians to found a settlement at Nootka. The Court of 
Madrid in consequence addressed a remonstrance to the Em- 
peror of Russia against the encroachments upon the territo- 
ries of his Catholic Majesty, which were assumed to extend 
northward up to Prince William's Sound, and the Viceroy of 
Mexico in the mean time took measures to prevent the exe- 
cution of any such schemes. W^ith this object he despatched 
Martinez and Haro in 1789, with instructions to occupy the 
port of Nootka by right of the prior discovery of Perez in 
1774, to treat any Russian or English vessels that might be 
there with the courtesy which the amicable relations between 
the several nations required, but to manifest to them the para- 
mount rights of Spain to make establishments there, and by 
inference to prevent all foreign establishments which might 
be prejudicial to Spanish interests. 

The Princesa sailed into Nootka Sound on the 6th of May 
1789, and found the Iphigenia at Friendly Cove. The San 
Carlos joined her consort on the 13th. The Columbia mer- 
chantman, of the United States of America, was lying at an- 



SEIZURE OF THE ARGONAUT. 81 

chor at no great distance. Mutual civilities passed between 
the different vessels till the 15th, when Martinez took posses- 
sion of the Iphigenia, and transferred her captain and crew 
as prisoners to his own vessels. He subsequently allowed 
the Iphigenia to depart, upon an obligation being signed by 
the captain and supercargo on behalf of Juan Cavallo of 
Macao, as the owner, to satisfy all demands, in case the Vice- 
roy of Spain should pronounce her to be a prize, on account 
of navigating or anchoring in seas or ports belonging to the do- 
minion of his Catholic Majesty without his permission. Captain 
Kendrick of the Columbia, and Ingraham his first pilot, were 
called in to witness this agreement. The Iphigenia was re- 
leased on the 1st of June, and sailed away directly to Queen 
Charlotte's Island. On the 8th, the North-west America arrived 
from a trading voyage along the southern coasts, and was im- 
mediately taken possession of by Martinez. A few days after- 
wards the Princess Royal arrived from Macao, bringing in- 
telligence of the failure of the house of Cavallo, in conse- 
quence of which Martinez hoisted Spanish colours on board 
of the North-west America, and employed her to trade along 
the coast upon his own account. 

The Princess Royal was not however molested by him, 
but, on the 2d of July, her consort the Argonaut arrived with 
Captain Colnett, who, upon hearing of the treatment of the 
Iphigenia and the North-west America, hesitated at first to 
enter the Sound. His instructions were to found a factory, to 
be called Fort Pitt, in the most convenient station which he 
might select, for the purpose of a permanent settlement, and 
as a centre of trade, round which other stations might be es- 
tablished. Having at last entered the Sound, he was invited 
to go on board the Princesa, where an altercation ensued be- 
tween Martinez and himself, in respect of his object in visiting 
Nootka, the result of which was the arrest of Colnett himself 
and the seizure of the Argonaut. Her consort the Princess 
Royal on her return to Nootka on the 13th of July, was seized 
in like manner by the Spanish commander. Both these ves- 
sels were sent as prizes to San Bias, according to Captain 
Meares' memorial. The Columbia in the mean while had 
been allowed to depart unmolested, and her consort the Wash- 
ington, which had been trading along the coast, soon followed 
her. 

Such is a brief summary of the transactions at Nootka 
Sound in the course of 1789, which led to the important poli- 



82 SPANISH REMONSTRANCE. 

tical discussions, that terminated in the convention of the 
28th of Oct. 1790, signed at the Escurial. By this conven- 
tion the future relations of Spain and Great Britain in respect 
of trade and settlements on the north-west coast of America, 
were amicably arranged. 

Immediately upon receiving information of these transac- 
tions from the Viceroy, the Spanish Government hastened to 
communicate to the Court of London the seizure of a British 
vessel, (the Argonaut,) and to remonstrate against the attempts 
of British subjects to make settlements in territories long oc- 
cupied and frequented by the Spaniards, and against their en- 
croachments on the exclusive rights of Spain to the fisheries 
in the South Seas, as guaranteed by Great Britain at the 
treaty of Utrecht. The British Ministry in reply demanded 
the immediate restoration of the vessel seized, as preliminary 
to any discussion as to the claims of Spain. The Spanish 
Cabinet in answer to this demand stated, that as the Viceroy 
of Mexico had released the vessel, his Catholic Majesty con- 
sidered that affair as concluded, without discussing the un- 
doubted rights of Spain to the exclusive sovereignty, naviga- 
tion, and commerce in the territories, coasts, and seas, in that 
part of the world, and that he should be satisfied with Great 
Britain directing her subjects to respect those rights in future. 
At this juncture, Meares, who had received from the Colum- 
bia, on her arrival at Macao, the tidings of the seizure of the 
North-west America, whose crew returned as passengers in 
the Columbia, as well as of the Argonaut and the Princess 
Royal, arrived at London with the necessary documents to 
lay before the British Government. A full memorial of the 
transactions at Nootka Sound in 1789, including an account 
of the earlier commercial voyages of the Nootka and the 
Felice, was presented to the House of Commons on May 13, 
1790. It is published in full in the appendix to Meares' Voy- 
ages, and the substance of it may be found amongst the state 
papers in the Annual Register for 1790. This was followed 
by a message from his Majesty to both Houses of Parliament 
on May 26th, stating that " two vessels belonging to his Ma- 
jesty's subjects, and navigated under the British flag, and two 
others, of which the description had not been hitherto suffi- 
ciently ascertained, had been captured at Nootka Sound by 
an officer commanding two Spanish ships of war." Having 
alluded to the substance -of the communications which had 
passed between the two Governments, and to the British 



BRITISH DEMAND. 83 

minister having been directed to make a fresh representation, 
and to claim full and adequate satisfaction, the message con- 
cluded with recommending that " such measures should be 
adopted as would enable his Majesty to support the honour of 
his crown and the interests of his people." The House of 
Commons gave their full assent to these recommendations, 
and readily voted the necessary supplies, so that preparations 
to maintain the rights of Great Britain by arms were imme- 
diately commenced. In the mean time a note had been ad- 
dressed on May 5th, to the Spanish minister in London, to the 
effect that his Majesty the King of England would take effect- 
ual measures to prevent his subjects from acting against the 
just and acknowledged rights of Spain, but that he could not 
accede to her pretensions of absolute sovereignty, commerce, 
and navigation, and that he should consider it his duty to pro- 
tect his subjects in the enjoyments of the right of fishery in 
the Pacific Ocean. In accordance with the foregoing an- 
swers, the British charge-d'affaires at Madrid made a demand, 
on May 16th, for the restitution of the Princess Royal, and 
for reparation proportionate to the losses and injuries sus- 
tained by English subjects trading under the British flag. He 
further asserted for them " an indisputable right to the enjoy- 
ment of a free and uninterrupted navigation, commerce, and 
fishery, and to the possession of such establishments as they 
should form with the consent of the natives of the country, not 
previously occupied by any of the European nations." The 
substance of these communications was embodied in the me- 
morial of the Court of Spain, delivered on June 13th to the 
British ambassador at Madrid. It appeared, however, from a 
subsequent reply from the Spanish minister, the Conde de 
Florida Blanca, that Spain maintained, " that the detention 
of the vessels was made in a port, upon a coast, or in a bay 
of Spanish America, the commerce or navigation of which 
belonged exclusively to Spain by treaties with all nations, 
even England herself. The nature of these exclusive claims 
of Spain had been already notified to all the courts of Europe, 
in a declaration made by his Catholic Majesty on June 4th, 
where the words are made use of, " in the name of the King, 
his sovereignty, navigation, and exclusive commerce to the 
continent and islands of the South Sea, it is the manner in 
which Spain, in speaking of the Indies, has always used these 
words : that is to say, to the continent, islands and seas, 
which belong, to his Majesty, so far as discoveries have been 



84 SPANISH MEMORIAL. 

made, and secured to him by treaties and immemorial posses- 
sion, and uniformly acquiesced in, notwithstanding some in- 
fringements by individuals, who have been punished upon 
knowledge of their offences. And the King sets up no pre- 
tensions to any possessions, the right to which he cannot prove 
by irrefragable titles." 

What were the treaties and immemorial possession upon 
which Spain rested her claims, was more explicitly stated in 
the Spanish Memorial of the 13fh June. The chief reliance 
seemed to have been placed upon the 8th article of the Treaty 
of Utrecht, as concluded between Great Britain and Spain in 
1713, by which it was agreed, that the exercise of navigation 
and commerce to the Spanish West Indies should remain in 
the same state in which it was in the time of Charles II. of 
Spain ; that no permission should at any time be given to any 
nation, under any pretext whatever, to trade into the domin- 
ions subject to the Crown of Spain in America, excepting as 
already specially provided for by treaties : moreover. Great 
Britain undertook "to aid and assist the Spaniards in re-es- 
tablishing the ancient limits of their dominions in the West 
Indies, in the exact situation in which they had been in the 
time of Charles II." The extent of the Spanish territories, 
commerce, and dominions on the continent of America was 
further alleged in this memorial to have been clearly laid 
down and authenticated by a variety of documents and formal 
acts of possession about the year 1692, in the reign of the 
above-mentioned monarch : all attempted usurpations since 
that period had been successfully resisted, and reiterated acts 
of taking possession by Spanish vessels, had preserved the 
rights of Spain to her dominions, which she had extended to 
the limits of the Russian establishments within Prince Wil- 
liam's Sound. It was still further alleged, that the Viceroys 
of Peru and New Spain had of late directed the western 
coasts of America, and the islands and seas adjacent, to be 
more frequently explored, in order to check the growing in- 
crease of smuggling, and that it was in one of the usual tours 
of inspection of the coasts of California that the commanding 
officer of a Spanish ship had detained the English vessels in 
Nootka Sound, as having arrived there, not for the purposes of 
trade, but with the object of " founding a settlement and forti- 
fying it." 

From these negotiations it would appear, that Spain claimed 
for herself an exclusive title to the entire north-western coast 



DECLARATIONS OF THE TWO POWERS. 85 

of America, up to Prince William's Sound, as having been 
discovered by her, and such discovery having been secured 
to her by treaties, and repeated acts of taking possession. 
She consequently denied the right of any other nation (for 
almost all the nations of Europe had been parties to the Treaty 
of Utrecht) to make establishments within the limits of Span- 
ish America. Great Britain, on the other hand, maintained 
her right " to a free and undisturbed navigation, commerce, 
and fishery, and to the possession of any establishment which 
she might form with the consent of the natives of the country, 
where such country was not previously occupied by any of the 
European nations." These may be considered to have been 
the two questions at issue between Great Britain and Spain, 
which were set at rest by the subsequent convention. 

That such was the object of the convention, is evident 
from the tenor of two documents exchanged between the two 
courts on the 24th of July, 1790, the first of which contained 
a declaration, on the part of his Catholic Majesty, of his en- 
gagement to make full restitution of all the British vessels 
which were captured at Nootka, and to indemnify the parties 
with an understanding that it should not prejudice "the ulte- 
rior discussion of any right which his Majesty might claim to 
form an exclusive establishment at the port of Nootka ;" 
whilst on the part of his Britannic Majesty a counter-decla- 
ration was issued, accepting the declaration of his Catholic 
Majesty, together with the performance of the engagements 
contained therein, as a full and entire satisfaction for the 
injury of which his Majesty complained; with the reservation 
that neither the declaration nor its acceptance " shall preju- 
dice in any respect the right which his Majesty might claim 
to any establishment which his subjects might have formed, 
or should be desirous of forming in future, in the said Bay of 
Nootka." Mr. Greenhow's mode of stating the substance of 
these papers (p. 206) is calculated to give an erroneous no- 
tion of the state in which they left the question. He adds, 
" it being, however, at the same time admitted and expressed 
on both sides, that the Spanish declaration was not to preclude 
or prejudice the ulterior discussion of any right which his 
Catholic Majesty might claim to form an exclusive establish- 
ment at Nootka Sound." This is not a correct statement of 
the transaction, as the reservation was expressed in the de- 
claration of his Catholic Majesty; but so far was his Britan- 
nic Majesty from admitting it in the counter-declaration, that 
5 



88 CONVENTION OF THK ESCUEIAL. 

he met it directly with a special reservation of the rights of 
his own subjects, as already set forth. 

Had the crown of Spain been able to rely upon assistance 
from France, in accordance with the treaty of 1701, known 
as the Family Compact, there can be no doubt that she would 
have attempted to maintain by arms her claim of exclusive 
sovereignty over " all the coast to the north of Western Ame- 
rica on the side of the South Sea, as far as beyond what is 
called Prince William's Sound, which is in the sixty-first de- 
gree ;" but her formal application for assistance was not 
attended with the result which the mutual engagements of the 
tw^o crowns would have secured at an earlier period. The 
National Assembly, to which body Louis XVI. was obliged, 
under the altered state of political circumstances in France, 
to submit the letter of the King of Spain, was rather disposed 
to avail itself of the opportunity which seemed to present itself 
for substituting a national treaty between the two nations for 
the Family Compact between the two Courts ; and though it 
decreed that the naval armaments of France should be in- 
creased in accordance with the increased armaments of other 
European powers, it made no direct promise of assistance to 
Spain. On the contrary, the Diplomatic Committee of the 
National Assembly resolved rather to strengthen the relations 
of France with England, and to prevent a war, if possible ; 
and with this object they co-operated with the agent of Mr. 
Pitt in Paris (Tomline's Life of Pitt, c. xii.) and with M. de 
Montmorenci, the French Secretary for Foreign Aflairs^ in 
furthering the peaceable adjustment of the questions in dis- 
pute. 



Convention between His Britannic Majesty and the King of 
Spain^ signed at the Escurial the '^-ith of October, 1790. 
(Annual Register, 17U0, p. 303. Martens, Recueil de 
Traitesjt. iv., p. 4:}3.) 

"Their Britannic and Catholic Majesties, being desirous 
of terminating, by a speedy and solid agreement, the dilTer- 
ences which have lately arisen between the two crowns, 
have judged that the best way of attaining this salutary object 
would be that of an Hinica!)ie arrangement, which, setting 
aside all retrospective discussion of the ri<ihts and pretensions 
of the two parties, bhuuld tin their respective situation for the 



CONVENTION OF THE ESCURIAL. 87 

future on a basis conformable to their true interests, as well 
as to the mutual desire with which their said Majesties are ani- 
mated, of establishing with each other, in every thing and in all 
places, the most perfect friendship, harmony, and good corres- 
pondence. In this view, they have named and constituted for 
their plenipotentiaries ; to wit, on the part of his Britannic 
Majesty, Alleyne Fitz-Herbert, Esq., one of his said Majesty's 
Privy Council in Great Britain and Ireland, and his Ambas- 
sador Extraordinary and Plenipotentiary to his Catholic Ma- 
jesty ; and, on the part of his Catholic Majesty, Don Joseph 
Monino, Count of Florida Blanca, Knight Grand Cross of the 
Royal Spanish Order of Charles III., Councillor of State to 
his said Majesty, and his Principal Secretary of State, and of 
the Despatches ; who, after having communicated to each other 
their respective full powers, have agreed upon the following 
articles : — 

"Art. I. It is agreed that the buildings and iracts of land 
situated on the north-west coast of the continent of North 
America, or on islands adjacent to that continent, of which 
the subjects of his Britannic Majesty were dispossessed, about 
the month of April, 1789, by a Spanish officer, shall be restor- 
ed to the said Britannic subjects. 

" Art. II. And further, that a just reparation shall be 
made, according to the nature of the case, for all acts of vio- 
lence or hostility which may have been committed, subsequent 
to the month of April, 1789, by the subjects of either of the 
contracting parties against the subjects of the other ; and 
that, in case any of the said respective subjects shall, since 
the same period, have been forcibly dispossessed of their 
lands, buildings, vessels, merchandise, or other property 
whatever, on the said continent, or on the seas or islands ad- 
jacent, they shall be re-established in the possessicn thereof, or 
a just compensation shall be made to them for the losses which 
they shall have sustained. 

" Art. III. And in order to strengthen the bonds of friend- 
ship, and to preserve in future a perfect harmony and good 
understanding between the two contracting parties, it is agreed 
that their respective subjects shall not be disturbed or mo- 
lested, either in navigating or carrying on their fisheries in 
the Pacific Ocean, or in the South Seas or in landing on the 
coasts of those seas, in places not already occupied,, for the 
purpose of carryin^pa their commerce with the natives of the 



88 CONVENTION OF THE ESCURIAL. 

country, or of making seltlcmeiils there ; the whole subject, 
nevertheless, to the restrictions and provisions specilied in 
the three following articles. 

" Art. IV. His Britannic Majesty engages to take the 
most effectual measures to prevent the navigation and fishery 
of his subjects in the Pacific Ocean, or in the South Seas, 
from being made a pretext for illicit trade with the Spanish 
settlements ; and with this view, it is moreover expressly stip- 
ulated, that British subjects shall not navigate, or carry on 
their fishery in the said seas, within the space of ten sea 
leagues from any part of the coasts already occupied hy Spain. 

" Art. V. It is agreed, that as well in the places which 
are to be restored to the British subjects, by virtue of the 
first article, as in all other parts of the north-western coasts 
of North America, or of the islands adjacent, situated to the 
north of the parts of the said coast already occupied by Spain, 
wherever the subjects of either of the two powers shall have 
made settlements since the month of April, 1789, or shall 
hereafter make any, the subjects of the other shall have free 
access, and shall carry on their trade, without any disturbance 
or molestation. 

'* Art. VI. It is further agreed, with respect to the east- 
ern and western coasts of South America, and to the islands 
adjacent, that no settlement shall be formed hereafter, by the 
respective subjects, in such parts of those coasts as are situat- 
ed to the south of those parts of the same coasts and of the 
islands adjacent, which are already occupied by Spain : pro- 
vided that the said respective subjects shall retain the liberty 
of landing on the coasts and islands so situated, for the pur- 
poses of their fishery, and of erecting thereon huts, and other 
temporary buildings, serving only for those purposes. 

*' Art. VII. In all cases of complaint or infraction of the 
articles of the present convention, the officers of either party, 
without permitting themselves previously to commit any vio- 
lence or act of force, shall be bound to make an exact report 
of the afiair, and of its circumstances, to their respective 
courts, who will terminate such differences in an amicable 
manner. 

" Art. VIII. The present convention shall be ratified 
and confirmed in the space of six weeks, to be computed 
from the day of its signature, or sooner, if it can be done. 

"In witness whereof, we the undersigned Plenipotentiaries 
of their Britannic and Catholic Majesties, have, in their 



ARTICLES OF THE CONVENTION. 89 

names, and in virtue of our respective full powers, signed the 
present convention, and set thereto the seals of our arms. 

" Done at the Palace of St. Laurence, the twenty-eighth 
of October, one thousand seven hundred and ninety. 
" Alleyne Fitz-Herbert. 
(L. S.) 
" El Conde de Florida Blanca." 
(L. S.) 

On examining this convention, it will be seen that the first 
article confirmed the positive engagement which his Catholic 
Majesty had contracted by his declaration of the 24th July : 
that the second contained an engagement for both parties to 
make reparation mutually for any contingent acts of violence 
or hostility : that the third defined for the future the mutual 
rights of the two contracting parties, in respect to the ques- 
tions which remained in dispute after the exchange of the 
declaration and counter-declaration. By this article the navi- 
gation and fisheries of the Pacific Ocean and the South Seas 
were declared to be free to the subjects of the two crowns, 
and their mutual right of trading with the natives on the coast, 
and of making seitlements in places not already occupied,, was 
fully recognised, subject to certain restrictions in the follow- 
ing articles. 

By the fourth of these, his Britannic Majesty bound himself 
to prevent his subjects carrying on an illicit trade with the 
Spanish settlements, and engaged that they should not ap- 
proach within ten miles of the coasts already occupied by 
Spain. 

By the fifth it was agreed that, in the places to be restored 
to the British, and in whatever parts of the north-western 
coasts of America, or the adjacent islands, situate to the north 
of the parts already occupied by Spain, the subjects of either 
power should make settlements, the subjects of the other 
should have free commercial access. 

By the sixth it was agreed, that no settlements should be 
made by either power on the eastern and western coasts of 
South America, or the adjacent islands, south of the parts 
already occupied by Spain ; but that they should be open to 
the temporary occupation of the subjects of either power, for 
the purposes of their fishery. 

By the seventh, provisions were made for the amicable 
arrangement of any differences which might arise from in- 



^0 MR. GREEXHOW'S VIEWS. 

fringemenfs of the convention ; and, by the eighth, the time 
of ratification was settled. 

It thus appears that, by the third article, the right insisted 
upon i>y the British charge-d'affaires at Madrid, in the Memo- 
rial of the 16th of May, was fully acknowledged ; namely, 
"the indisputable right to the enjoyment of a free and unin- 
terrupted navigation, commerce, and fishery, and to the pos- 
session of such establishments as they should form, with the 
consent of the natives of the country, not previously occupied 
by any of the European nations." In accordance with this 
view, it is observed in Schoell's Histoire Abregee des Traites 
de Paix : " En consequence il fut signe le 28 Octobre, au 
palais de I'Escurial, une convention par laquelle la question 
litigieuse fut entierement decidee en faveur de la Grande 
Bretagne." 

Thus, indeed, after a struggle of more than two hundred 
years, the principles which Great Britain had asserted in the 
reign of Elizabeth, were at last recognised by Spain : the 
unlimited pretensions of the Spanish crown to exclusive 
dominion in the Western Indies, founded upon the bull of 
Alexander VI., were restrained within definite limits ; and 
occupation, or actual possession, was acknowledged to be 
henceforward the only test between the two crowns, in 
respect to each other, of territorial title on the west coast of 
North America. 

Mr. Greenhow states, (p. 215,) that both parties were, by 
the convention, equally excluded from settling in the vacant 
coasts of South America ; and from exercising that jurisdic- 
tion which is essential to political sovereignty, over any spot 
north of the most northern Spanish settlement in the Pacific. 
The former part of this statement is perfectly correct, but the 
latter is questionable, in the form in which it is set forth. 
The right of trading with the natives, or of making settle- 
ments in places not already occupied, was secured to both 
parties by the third article : whereas, in places where the 
subjects of either power should have made settlements, free 
access for carrying on their trade was all that was guaran- 
teed to the subjects of the other party. This then was merely 
a commercial privilege, not inconsistent with that territorial 
sovereignty, which, by the practice of nations, would attend 
upon the occupation or actual possession of lands hitherto 
vacant. In fact, when Mr. Greenhow observes, in continua- 
tion, that " the convention determined nothing regarding the 



91 

rights of either to the sovereignty of any portion of America, 
except so far as it may imply an abrogation, or rather suspen- 
sion of all such claims on both sides, to any of those coasts ;" 
he negatives his previous supposition that the convention 
precluded the acquisition of territorial sovereignty by either 
party. The general law of nations would regulate this ques- 
tion, if the convention determined nothing : and, by that 
general law, " when a nation takes possession of a country 
to which no prior owner can lay claim, it is considered as 
acquiring the empire or sovereignty of it at the same time 
with the domain.''^ The discussion of this question, however, 
as being one of law, not of fact, will be more properly 
deferred. 

One object of Vancouver's mission, as already observed, 
was to receive from the Spanish officers such lands or build- 
ings as were to be restored to the subjects of his Britannic 
Majesty, in conformity to the first article of the convention, 
and instructions were forwarded to him, after his departure, 
through Lieutenant Hergest, in the Daedalus, to that effect. 
The letter of Count Florida Blanca to the commandant at 
Nootka, which Lieutenant Hergest carried out with him, is 
to be found in the Introduction to Vancouver's Voyage, p. 
xxvii. " Li conformity to the first article of the convention of 
28th October, 1790, between our Court and that of London, 
( ) you will give directions that his Britan- 
nic Majesty's officer, who shall deliver this letter, shall imme- 
diately be put into possession of the buildings, and districts 
or parcels of land, which were occupied by the subjects of 
that sovereign in April 1789, as well in the port of Nootka 
or of St. Lawrence, as in the other, said to be called Port 
Cox, and to be situated about sixteen leagues distant from the 
former, to the southward ; and that such parcels or districts 
of land of which the English subjects were dispossessed, be 
restored to the said officer, in case the Spaniards should not 
have given them up." 

Vancouver, however, on his arrival, found himself unable 
to acquiesce in the terms proposed by Seiior Quadra, the 
Spanish commandant, and despatched Lieutenant Mudge, by 
way of China, to England, for more explicit instructions. 
Lieutenant Broughton was subsequently directed to proceed 
home in 1793, with a similar object. On his arrival he was 
sent by the British Government to Madrid ; and on his return 
to London, vas ordered to proceed to Nootka, as captain of 



92 belsham's history of England. 

his Majesty's sloop Providence, with Mr. Mudge as his first 
lieutenant, to receive possession of the territories to be 
restored to the British, in case they should not have been 
previously given up. His own account, published in his Voy- 
age, p. 50, is unfortunately meagre in the extreme. On 17th 
March, 1796, he anchored in the Sound, where Maquinna 
and another chief brought him several letters, dated March, 
1795, which informed him " that Captain Vancouver sailed 
from Monterey the 1st December, 1794, for England, and 
that the Spaniards had delivered up the port of Nootka, &c., 
to Lieutenant Pierce of the marines, agreeably to the mode of 
restitution settled between the two Courts. A letter from the 
Spanish officer. Brigadier Alava, informed him of their sail- 
ing, in March, 1795, from thence." 

It is evidently to this transaction that Schoell, in his edition 
of Koch's Histoire Abregee des Traites de Paix, t. i., ch. xxiv., 
refers, when he writes, — " L'execution de la Convention du 
28 Octobre 1790, eprouva, du reste, des difficultes qui la 
retardcrent jusqu'en 1795. Elles furent terminees le 23 Mars 
de cette annce, sur les lieux memes, par le brigadier Espag- 
nol Alava, et le lieutenant Anglais Poara, (Pierce?) qui 
echangerent des declarations dans le golfe de Nootka meme. 
Apres que le fort Espagnol fut rase, les Espagnols s'em- 
barquerent, et le pavilion Anglais y fut plante en signe de 
possession." M. Koch does not give his authority, but it 
was most probably Spanish, from the modification which the 
name of the British lieutenant has undergone. On the other 
hand, Mr. Greenhow cites a passage from Belsham's History 
of England, to this effect* — "It is nevertheless certain, from 
the most authentic information, that the Spanish flag flying at 
Nootka was never struck, and that the territory has been vir- 
tually relinquished by Great Britain." It ought, however, to 
have been stated, that this remark occurs in a note to Bel- 
sham's work, without any clew to the authentic information 
on which he professed to rely, and with a special reference 
to a work of no authority — L'Histoire de Frederic-Guillaume 
II., Roi de Prusse, par le Comte de Scgur ; — in which it is 
stated, that the determination of the French Convention to 
maintain at all risk the Family Compact, intimidated Great 
Britain into being satisfied with the mere restitution of the 
vessels which had been captured with her subjects, while 
engaged in a contraband trade with the Spanish settlements ! 
It further appears from an official Spanish paper, to which 



M. DUFLOT DE MOFRAS. 93 

Mr. Greenhow alludes in a note (p. 257,) as existing in the 
library of Congress at Washington, intitled " Instruccion 
reservada del Reyno de Nueva Espaiia, que el Exmo Senor 
Virey Conde de Revillagigedo dio a su sucesor el Exmo 
Seilor Marques de Brancitbrte, en el ario de 1704," that or- 
ders had been sent to the commandant at Nootka to abandon 
the place, agreeably to a royal dictamen. The negative re- 
mark, therefore, of Mr. Belsham, cannot disprove the fact of 
the restitution of Nootka to the British, against the positive 
statements of so many high authorities : it may, indeed, be 
conclusive of his own ignorance of the fact, and so far his 
integrity may remain unimpeached ; but it must be at the 
expense of his character for accurate research and careful 
statement — the most valuable, as well as the most necessary 
qualifications of a writer of history. 

M. Dufiot de Mofras, in his recent work, intitled, " Explo- 
ration du Territoire de I'Oregon," torn, ii., p. 145, further 
states, that Lieutenant Pierce passed through Mexico. " Par 
suite de quelques fausses interpretations du traite de 28 Oct. 
1790, les Espagnols ne remirent point immediatement Noot- 
ka aux Anglais, et ce ne fut qu'en Mars 1795, que le com- 
mandant Espagnol opera cette cession entre les mains du 
Lieutenant Pierce, de I'infanterie de marine Anglaise, venu 
tout expres de Londres par le Mexique, pour hater I'execution 
du traite de TEscurial." 



5* 



94 



CHAPTER VI. 



THE OREGON OR COLUMBIA RIVER. 

The Oregon, or Great River of the West, discovered by D Bruno Heceta, 
in 1775. Ensenada do Heceta. — Rio de San Roque. — Meares' Voyage 
in the FeHce, in 1788. — Deception Bay. — Vancouver's Mission in 1791. 
— Vancouver vindicated against Mr. Greenhow in respect to Cape Or- 
ford — Vancouver passes through Deception Bay. — Meets Captain Gray 
in the Merchant-ship Columbia. — Gray passes the Bar of the Oregon, 
and gives it the Name of the Columbia River. — Extract from the Log- 
book of the Columbia. — Vancouver defended. — The Chatham crosses 
the Bar, and finds the Schooner Jenny, from Bristol, inside. — The Dis- 
covery driven out to Sea. — Lieutenant Broughton ascends the River 
with his Boats, 110 miles from its Mouth. — Point Vancouver. — The 
Cascades — The Dalles. — The Chutes or Falls of the Columbia. — Mr. 
Greenhovv's Criticism of Lieutenant Broughton's Nomenclature. — Lord 
Stoweli's Definition of the Mouth of a Uiver. — Extent of Gray's Re- 
searches. — Tlie Discovery of the Columbia River a progressive Dis- 
covery. — Doctrine as to the Discovery of a River, set up by the United 
States, denied by Great Britain. 

It is generally admitted that the first discovery of the lo- 
cality where the Oregon or Great River of the West emptied 
itself into the sea, was made in 1775, by D. Bruno Heceta, 
as he was coasting homewards to Monterey, having parted 
with his companion Bodega in about the 50th degree of north 
latitude. We find in consequence that in the charts pub- 
lished at Mexico soon after his return, the inlet, which he 
named Ensenada de la Asuncion, is called Ensenada de He- 
ceta, and the river which was supposed to empty itself there, 
is marked as the Rio de San Roque. The discovery however 
of this river by Heceta was certainly the veriest shadow of a 
discovery, as will be evident from his own report, which Mr. 
Greenhow has annexed in the Appendix to his work. Having 
stated that on the 17th of August he discovered a large bay, 
to which he gave the name of the Bay of the Assumption, in 
about 40^ 17' N. L., he proceeds to say, that having placed 
his ship nearly midway between the two capes which formed 
the extremities of the bay, ho found the currents and eddies 



HE ares' voyage. 95 

too strong for his vessel to contend with in s'afety. *' These 
currents and eddies of water caused me to believe that the 
place is the mouth of some great river, or of some passage 
into another sea." In fact, Heceta did not ascertain that the 
water of this current was not sea-water, and as he himself 
says, had little difficulty in conceiving that the inlet might 
be the same with the passage mentioned by De Fuca, since 
he was satisfied no such straits as those described by De 
Fuca existed between 47° and 48°. 

Although, however, the discovery of this river was !=o es- 
sentially imperfect, being attended by no exploration, as hard- 
ly to warrant the admission of it into charts which professed 
to be well authenticated, stiil its existence was believed upon 
the evidence which Heceta's report furnished, and as subse- 
quent examination has confirmed its existence, the Spaniards 
seem Avarranted in claiming the credit of the discovery for 
their countryman. 

No further notice of this supposed river occurs until Meares' 
voyage in the Felice, in 1788. Meares, according to his 
published narrative, reached the bay of the river on July 6th, 
and steered into it, with every expectation of finding there, 
according to the Spanish accounts, a good port. In this hope, 
however, he was disappointed, as breakers were observed, as 
he approached, extending across the bay. He in consequence 
gave to the northern headland the name of Cape Disappoint- 
ment, and to the bay itself the title of Deception Bay. " We 
can now with safety assert," he writes, " that no such river 
as that of Saint Roc exists, as laid dov/n in the Spanish 
charts." Meares had been led from these charts to expect 
that he should find a place of shelter for his ship at the mouth 
of this river, and Heceta, in his plan, upon which the Spanish 
charts were based, had supposed that there v\^as a port there 
formed by an island : so that, as " it blew very strong in the 
offing, and a great westerly swell tumbled in on the land," it 
was not surprising that Meares should have concluded, from 
there being no opening in the breakers, that there was no 
such port, and therefore no such river. 

There can be no doubt that the locality of the bay which 
Meares reconnoitred was the locality of the Ensenada de 
Heceta ; and on the other hand it cannot be gainsayed, that 
Meares was right in concluding that there was no such river 
as that of St. Roque, as laid down in the Spanish charts, for 
the context of Meares' narrative explains the meaning cf the 



96 BRITISH SETTLEMENT IN 1827. 

Avord "such." Meares states beforehand, that they were in 
expectation that the distant land beyond the promontory would 
prove to be " the Cape St. Roque of the Spaniards, near 
■which they ircre said to have found a good port.^^ The river, 
then, of St. Roque, such as it was laid down in Spanish charts, 
was a river " near which was a good port," and the disap- 
pointment which Meares handed down to posterity by the 
name which he gave to the promontory, was that of 7iot oh- 
iaining a place of shelter for his vessel. Meares, it must be 
remembered, was not in search of the Straits of Anian. He 
had already in the previous month of June ascertained the 
existence of the Straits of Juan de Fuca, which he supposed 
might be one of the passages into Hudson's Bay : but he was 
in search of some harbour or port, where the ship could re- 
main in safety, while the boats might be employed in explor- 
ing the coast. (Voyage, p. 166.) Such a harbour indeed 
Deception Bay most assuredly does not supply, and though 
Baker's Bay within the bar of the river affords on the north 
side a good and secure anchorage, yet, as Lieut. Broughton 
subsequently ascertained, " the heavy and confused swell that 
rolls in over the shallow entrance, and breaks in three fath- 
oms water, renders the place between Baker's Bay and Chi- 
nock Point a very indifferent roadstead." 

Mr. Greenhow, (p. 177,) in his observations on Meares' 
voyage, writes thus : " Yet, strange though it may appear, 
the commissioners appointed by the British Government in 
1826, to treat with the plenipotentiary of the United States at 
London, on the subject of the claims of the respective parties 
to territories on the northwest side of America, insisted that 
Meares on this occasion discovered the Great River Colum- 
bia, which actually enters the Pacilic at Deception Bay, and 
cite, in proof of their assertion, the very parts of the narrative 
above extracted," the substance of which has just been re- 
ferred to. Mr. Greenhow, however, has attached rather too 
great an extent to the statement of the British commissioners, 
which is annexed to the protocol of the sixth conference, held 
at London, Dec. 16th, 1826. The documents relative to this 
negotiation have not as yet been published by the British 
Government, but they were made known to the Congress of 
the United States, with the message of President Adams, on 
Dec. 12, 1827, and Mr Greenhow has annexed the British 
statement in his Appendix. 

" Great Britain," it is there said, " can show that in 1788, 



MEARES' LOG-BOOK. 97 

that is, four years before Gray entered the mouth of the Co- 
lumbia riveTj Mr. Meares, a lieutenant of the Royal Navy, 
who had been sent by the East India Company on a trading 
expedition to the northwest coast of America, had already 
minutely explored the coast from the 49th to the 45th degree 
of north latitude ; had taken formal possession of the Straits 
of De Fuca in the name of his sovereign ; had purchased 
land, trafficked and formed treaties with the natives ; and had 
actually entered the bay of the Columbia, to the north head- 
land of which he gave the name of Cape Disappointment, a 
name which it bears to this day." 

The language of this statement, it will be seen, is carefully 
worded, so as not to go beyond the actual facts narrated in 
Meares' Voyage ; and further, on referring to the maps of the 
coasts and harbours which he visited, it continues, " in which 
every part of the coast in question, including the Bay of the 
Columbia {into which the log expressly states that Meares en- 
tered,) is minutely laid down, its delineation tallying in almost 
every particular with Vancouver's subsequent survey, and 
with the description found in all the best maps of that part of 
the world adopted at this moment." 

The entry in Meares' log-book is as follows : " July 6, lat. 
46° 10' ; long. 235° 24' ; northerly ; strong gales, a great 
sea. Passed Cape Disappointment, into Deception Bay, and 
hauled out again, and passed Quicksand Bay, Cape Gren- 
ville, and Cape Look-out." 

There is, therefore, nothing strange in the view which the 
British Commissioners really insisted upon, though it is 
strange that Mr. Greenhow should have misconstrued their 
statement, particularly as, in a paragraph almost immediately 
following, which will be referred to in full in its proper place, 
they readily admit that Mr. Gray, four years afterwards, " was 
the first to ascertain that this bay formed the outlet of a great 
river." 

The further examination of these coasts by British subjects 
was suspended for a short time, as already seen, by the inter- 
ference of the Spanish authorities. After, however, that Spain 
had definitively abandoned her pretensions to exclusive rights 
along the entire northwest coast of America, as far as Prince 
William's Sound, and agreed, by the third article of the Con- 
vention of 1790, that occupation should be the test of territo- 
rial title, the British Government judged it expedient " to as- 
certain with as much precision as possible the number, ex- 



98 CAPE okfohd. 

tent, and situation of any settlement which had been made 
within the limits of GO*' and 30° north latitude by any Euro- 
pean nation, and the time when such settlement was made. 
With this object, amongst others more immediately connected 
with the execution of the first article of the Convention, Cap- 
tain George Vancouver was despatched from Deptford with 
two vessels on January 6, 1791, and having wintered at the 
Sandwich Islands, where he was instructed to wait for further 
orders in reference to the restoration of the buildings and tracts 
of land, of which British subjects had been dispossessed at 
Nootka, he arrived off the coast of America on April 17, 1792, 
in about 39° 30'. He had received special instructions to 
ascertain the direction and extent of all such considerable in- 
lets, whether made by arms of the sea, or by the mouths of 
great rivers, which might be likely to lead to, or facilitate in 
any considerable degree, an intercourse, for the purposes of 
commerce, between the northwest coast and the country upon 
the opposite side of the continent, which are inhabited or oc- 
cupied by his Majesty's subjects ;" but he was expressly re- 
quired and directed "not to pursue any inlet or river further 
than it should appear to be navigable by vessels of such bur- 
den as might safely navigate the Pacific Ocean." (Introduc- 
tion to Vancouver's Voyage, p. xix.) 

Having made a headland, which he supposed to be Cape 
Mendocino, Vancouver directed his course northward, examin- 
ing carefully the line of coast, and taking soundings as he pro- 
ceeded. In about latitude 42^ 52', longitude 235° 35', he re- 
marked a low projecting headland, apparently composed of 
hlach craggy rocks in the space between the woods and the 
wash of the sea, and covered with wood nearly to the edge of 
the surf, which, as forming a very conspicuous point, he dis- 
tinguished by the name of Cape Orford. Mr. Greenhow has 
allowed his antipathy to Vancouver to lead him into an erro- 
neous statement in respect to this headland. Vancouver (V^ol. 
i., p. 205, April 25, 1792) writes : " Some of us were of opin- 
ion that this was the Cape Blanco of JMartin d'Aguilar ; its 
latitude, however, differed greatly from that in which Cape 
Blanco is placed by that navigator ; and its dark appearance, 
which might probably be occasioned by the haziness of the 
weather, did not seem to entitle it to the appellation of Cape 
Blanco." He afterwards goes on to say, that at noon, when 
Cape Orford was visible astern, nearly in the horizon, they 
had a projecting headland in sight on the westward, which 



MR. GREENHOW's REMARKS. 99 

he considered to be Cape Blanco. He here ranged along the 
coast, at the distance of about a league, in hope of discover- 
ing the asserted river of D'Aguilar. "About three in the 
afternoon, we passed within a league of the cape above men- 
tioned, and at about half that distance from some breakers that 
lie to the westward of it. This cape, though not so project- 
ing a point as Cape Orford, is nevertheless a conspicuous one, 
particularly when seen from the north, being formed by a 
round hill, on high perpendicular cliffs, some of which are 
white, a considerable height from the level of the sea." It 
appeared to Vancouver to correspond in several of its features 
with Captain Cook's description of Cape Gregory, though its 
latitude, which he determined to be 43° 23', did not agree 
with that assigned by Captain Cook to that headland ; but 
he again states, that there was a " probability of its being 
also the Cape Blanco of D'Aguilar, if land hereabouts 
the latter ever saw ;" and that " a compact white sandy 
beach commenced, where the rocky cliffs composing it termi- 
nate." 

Mr. Greenhov/ remarks : " Near the 43d degree of lati- 
tude, they sought in vain for the river, which Martin d'Aguilar 
was said to have seen, entering the Pacific thereabouts, in 
1603 : and they appeared inclined to admit as identical with 
the Cape Blanco of that navigator, a high, whitish promontory, 
in the latitude of 42° 52', to which, however, they did not 
scruple to assign the name of Cape Orford." Had these ob- 
servations been made in reference to Cape Gregory, the high 
cliffs of which are described by Vancouver as white, they 
would have been intelligible ; but, directed as they are by Mr. 
Greenhow against a headland which Vancouver expressly de- 
scribes as a " wedge-like, low, perpendicular cliff, composed 
of black craggy rock, with breakers upon sunken rocks about 
four miles distant, in soundings of forty-five fathoms, black 
sandy bottom," they expose Mr. Greenhow himself to the 
charge of not being sufficiently scrupulous when assailing a 
writer, towards whom he confesses that he feels considerable 
animosity. 

Having reached Cape Lookout, in 45° 32' N. L., Vancou- 
ver examined with attention the portion of coast which Meares 
had seen. About ten leagues to the north of this headland, 
the mountainous inland country descends suddenly to a mod- 
erate height, and were it not covered with lofty timber, might 
be deemed low land. Noon, " on the 27th of April, brought 



100 MR. ROBERT GRAY 

them in sight of a conspicuous point of land, composed of a 
cluster of hummocks, moderately high, and projecting into the 
sea from the low land above mentioned. Tlie hummocks are 
barren, and steep near the sea, but their tops thinly covered 
with wood. On the south side of this promontory was the ap- 
pearance of an inlet, or small river, the land behind not indi- 
cating it to be of any great extent ; nor did it seem accessible 
to vessels of our burden, as the breakers extended from the 
above point two or three miles into the ocean, until they joined 
those on the beach, three or four leagues further south. On 
reference to Mr. Meares' description of the coast south of 
this promontory, I was at first induced to believe it to be Cape 
Shoalwater ; but on ascertaining its localities, I presumed it 
to be that which he calls Cape Disappointment, and the open- 
ing south of it Deception Bay. This cape was found to be in 
latitude of 46° 19', longitude 236° 6' east. The sea had now 
changed from its natural to river -coloured water, the probable 
consequence of some streams falling into the bay, or into the 
opening north of it, through the low land. Not considering 
this opening worthy of our attention, I continued our pursuit 
to the northwest, being desirous to embrace the advantages of 
the now-prevailing breeze and pleasant weather, so favour- 
able to our examination of the coasts." 

The purport of Vancouver's observations in the passage 
just cited will not be correctly appreciated, unless his instruc- 
tions are kept in mind, which directed his attention exclu- 
sively to such inlets or rivers which should appear to be navi- 
gable to sea-going vessels, and be likely to facilitate in any 
considerable degree a communication with the northwest 
coast. Vancouver seems to have advanced a step beyond 
Ileceta in observing the river -coloured water, and so determin- 
ing the inlet not to be a strait of the sea ; but he rightly de- 
cided that the opening in the north part of the bay was not 
worthy of attention, either in respect to his main object of dis- 
covering a water-communication with the northwest coast, or 
to the prospect of its affording a certain shelter to sea-going 
vessels. 

Vancouver, as he approached De Fuca's Straits on 29th 
April, when off Cape Flattery, fell in with the merchant ship 
Columbia, commanded by Mr. Robert Gray, which had sailed 
from Boston on the 28th Sept., 1788. Captain Gray had for- 
merly commanded the Washington, when that vessel and the 
Columbia, commanded by Captain John Kcndrick, visited 



CROSSES THE BAR OF THE COLUMBIA. 101 

Nootka in 1788. Having given Vancouver some information 
respecting De Fuca's Straits, he stated that he had "been off 
the mouth of a river in the latitude of 46° 10', where the out- 
set, or reflux, was so strong as to prevent his entering it for 
nine days. This," continues Vancouver, " was probably the 
opening passed by us on the forenoon of the 27th, and was 
apparently then inaccessible, not from the current, but from 
the breakers that extended across it." Gray at this time had 
not succeeded in passing the bar at the mouth of the Colum- 
bia. After parting from Vancouver, he continued his course 
to the southward for the purposes of his summer trade. The 
extract from his own log-book, which Mr. Greenhow has in- 
serted in his Appendix, will furnish the best account of his 
proceedings : — "May 11th, at 4 a. 3I. saw the entrance of our 
desired port bearing E.S.E., distance six leagues; in steering 
sails, and hauled our wind in shore. At 8 a. m., being a lit- 
tle to windward of the entrance into the harbour, bore away 
and run in E.N.E. between the breakers, having from five to 
seven fathoms water. When we came over the bar, we found 
this to be a large river of fresh water, up which we steered." 

In the British statement it is admitted that " Mr. Gray, 
finding himself in the bay formed by the discharge of the wa- 
ters of the Columbia into the Pacific, was the first to ascer- 
tain that this bay formed the outlet of a great river — a discov- 
ery which had escaped Lieutenant Meares, when in 1788, 
four years before, he entered the same bay." 

This passage has been quoted to show that the claim of 
Captain Gray to the honour of having first crossed the bar of 
the river has not been impeached by the British Commis- 
sioners. He gave to the river the name of his own vessel, the 
Columbia. 

The Columbia remained at anchor on the 12th and 13th. 
On the 14th of May, Gray weighed anchor, and stood up the 
river N.E. by E. 

The log-book of the Columbia furnishes the following ex- 
tract : — 

" We found the channel very narrow. At 4 p.m. we had 
sailed upwards of twelve or fifteen miles, when the chan e. 
was so very narrow that it was almost impossible to keep in 
it, having from three to eighteen fathoms water, sandy bot- 
tom. At half-past four the ship took ground, but she did no. 
stay long before she came off, without any assistance. Wd 
backed her off stern-foremost into three fathoms, and let go 



102 VANCOUVER DEPENDED 

the small bower, and moved ship with kedge and hawser. 
The jolly-boat was sent to sound the channel out, but found 
it not navigable any further up ; so of course ire inust have taken 
the wrong channel. So ends, with rainy weather ; many na- 
tives alongside." On the following day Gray unmoored, and 
dropped down the river with the tide. On the 18th he made 
the latitude of the entrance to be 46° 17' north. On the 20th 
he succeeded, after some difficulty, in beating over the bar 
out to sea. 

This log-book, the authenticity of which is vouched for by 
Mr. Bulfinch, of Boston, one of the owners of the Columbia, 
affords the best evidence that Captain Gray's claim is limited 
to the discovery of the mouth of the Columbia, a discovery dif- 
ferent indeed in degree from Heceta's or Vancouver's, and en- 
titled to higher consideration, but not different in hind. It 
must be remembered that the problem to be solved was the 
discovery of the Great River of the West, but this problem 
was surely not solved by Gray, who expressly states that the 
channel which he explored was not navigable any further up 
than twelve or fifteen miles from the entrance ; " so of 
course," he adds, " we must have taken the wrong channel." 
But such a description would hardly have convinced the world 
that Gray had succeeded in discovering the Great River, un- 
less Lieutenant Broughton had subsequently succeeded in en- 
tering the right channel, and had explored its course for the 
distance of more than one hundred miles from the sea. But 
the reputation of this enterprising man needs no fictitious lau- 
rels. He was decidedly the first to solve the difficult ques- 
tion of their being a passage, such as it is, over the bar of the 
river. 

Mr. Greenhow, in commenting upon Gray's discovery, ob- 
serves, " Had Gray, after parting with the English ships, not 
returned to the river, and ascended it as he did, there is every 
reason to believe that it would have long remained unknown ; 
for the assertion of Vancouver, that no opening, harbour, or 
place of refuge for vessels was to be found between Cape 
Mendocino and the Strait of Fuca, and that this part of the 
coast formed one compact, solid, and nearly straight barrier 
against the sea, would have served completely to overthrow the 
evidence of the American fur-trader, and to prevent any further 
attempts to examine those shores, or even to approach them." 

Now the evidence of the American fur-trader, had he not 
returned to the river, would have needed no Vancouver to 



BROUGHTON CROSSES THE BAR. 108 

overthrow it, for it would have amounted to this, that Gray- 
had been off the mouth of a river for nine days, without being 
able to enter it ; whereas Vancouver's own statement would 
have been, that on the south side of Cape Disappointment 
there was the appearance of an inlet or small river, " which 
did not however seem accessible for vessels of our burthen," 
as breakers extended right across it. Mr. Greenhow misre- 
presents Vancouver, when he states that Meares' opinion was 
subscribed without qualification by Vancouver, for Vancouver 
carefully limits his opinion of the river to its being inacces- 
sible to vessels of equal burthen with his own sloop of war, 
the Discovery. 

Gray, after entering the Columbia, appears to have returned 
to Nootka, and to have given to Seiior Quadra, the Spanish 
commandant, a sketch of the river. Vancouver, having at- 
tempted in vain to conclude a satisfactory arrangement with 
Quadra in respect to the fulfilment of the first article of the 
Nootka Convention, determined to re-examine the coast of 
New Albion. With this object he sailed southward in the 
Discovery, accompanied by the Chatham and the Daedalus. 
The Daedalus having been left to explore Gray's harbour in 
46° 53', the Discovery and Chatham proceeded round Cape 
Disappointment, and the Chatham, under Lieutenant Brough- 
ton, was directed to lead into the Columbia river, and to sig- 
nalize her consort if only four fathoms water should be found 
over the bar. The Discovery followed the Chatham, till Van- 
couver found the water to shoal to three fathoms, with break- 
ers all around, -which induced him to haul off to the west- 
ward, and anchor outside the bar in ten fathoms. The Chat- 
ham, in the meantime, cast anchor in the midst of the 
breakers, where she rode in four fathoms, with the surf break- 
ing over her. "My former opinion," writes Vancouver, " of 
this port being inaccessible to vessels of our burthen was now 
fully confirmed, with this exception, that in very fine weather, 
with moderate winds and a smooth sea, vessels not exceeding 
400 tons might, so far as we were able to judge, gain admit- 
tance." It maybe observed that the vessels of the Hudson's 
Bay Company, by which the commerce of this part of the 
country is almost exclusively carried on, do not exceed 360 
tons, and draw only fourteen feet water. Captain Wilkes, 
in the United States Exploring Expedition, vol. iv., p. 489, 
speaks of a vessel of from 500 to 600 tons, the Lausanne, hav- 
ing navigated the Columbia ; on the other hand, the Starling, 



104 DANGERS OP THE NAVIGATION. 

which accompanied the Sulphur exploring vessel, under Cap- 
tain Belcher, in July, 1839, left her rudder on the bar, and the 
American corvette, the Peacock, which attempted to enter the 
river in July, 1841, was lost in very fine weather, having 
been drifted amongst the breakers by the set of the current. 

When it is known that the vessels of the Hudson's Bay 
Company have been obliged to lie-to off the mouth of the 
Columbia for upwards of two months before they could ven- 
ture to cross the bar, and that vessels have been detained in- 
side the bar for upwards of six weeks, it must be acknow- 
ledged that Vancouver's declaration of the probable character 
of the river has not fallen very wide of the mark. 

On the next day the Chatham succeeded, with the flood- 
tide, in leading through the channel, and anchored in a toler- 
ably snug cove inside Cape Disappointment ; but the Discov- 
ery, not having made so much way, was driven out by a 
strong ebb tide into 13 fathoms water, where she anchored 
for the night, and on the following day was forced by a gale 
of wind to stand out to sea, and to abandon all hope of regain- 
ing the river. 

On the Chatham rounding the inner point of Cape Disap- 
pointment, they were surprised to hear a gun fired from a ves- 
sel, which hoisted English colours, and proved to be the Jen- 
ny, a small schooner of Bristol, commanded by Mr. James 
Baker, which had sailed from Nootka Sound direct to Eng- 
land, before Vancouver started. This cove or bay inside 
Cape Disappointment was in consequence named, by Lieut. 
Broughton, Baker's Bay, which name it retains, and it ap- 
peared from Captain Baker's account that this was not the 
first occasion of his entering the river, but that he had beeii 
there in the earlier part of the year. 

The Chatham in the meantime proceeded up the inlet, and 
having in her course grounded for a short time on a shoal, 
anchored ultimately a little below the bay which had termi- 
nated Gray's researches, to which Gray had given his own 
name in his chart. The sketch of this, with which Vancou- 
ver had been favoured by the Spanish commandant at Nootka, 
M^as found by Broughton not to resemble much what it pur- 
ported to represent, nor did it mark the shoal on which the 
Chatham grounded, though it was an extensive one, lying in 
mid-channel. The bay, for instance, which Lieut. Brough- 
ton found to be not more than fifteen miles from Cape Disap- 
pointment, was, according to the sketch, thirty-six miles dis- 



POINT VANCOUVER. 105 

tant. Broughton left the Chatham here, and determined to 
pursue the further examination of the channel in the cutter 
and the launch. 

At the distance of about twenty-five miles from the sea, 
Broughton found the stream narrow rather suddenly to about 
half a mile in breadth, which seemed to warrant him in con- 
sidering the lower part, (the width of which was from three 
to seven miles,) to be a sound or inlet, and the true entrance 
of the river itself to commence from the point where it con- 
tracted itself. Broughton continued his ascent for seven days, 
making but slow progress against a strong stream. At the 
end of that time he was obliged to return from want of pro- 
visions, having reached a point which he concluded to be 
about 100 miles distant from the Chatham's anchorage, and 
nearly 120 from the sea. He was the more readily recon- 
ciled to the abandonment of any further examination, " be- 
cause even thus far the river could hardly be considered as 
navigable for shipping." Previously, however, to his depar 
ture, he formally " took possession of the river and the coun- 
try in its vicinity in his Britannic Majesty's name, having 
every reason to believe that the subjects of no other civilised 
nation or state had ever entered this river before." Brough- 
ton had fallen in with large parties of Indians in his ascent 
of the river, and had been kindly received by them. Amongst 
these was a friendly old chief, who accompanied them almost 
throughout the voyage, and who assisted at the ceremony and 
drank his Majesty's health on the occasion." It may be rea- 
sonably suspected that this worthy old chief would have as 
readily joined the next comers in drinking the health of the 
King of Spain, or the President of the United States. From 
him Broughton endeavoured to obtain further information 
respecting the upper country. " The little that could be 
understood was, that higher up the river, they would be pre- 
vented from passing by falls. This was explained by taking 
water up in his hands, and imitating the manner of its falling 
from rocks, pointing at the same time to the place where the 
river rises, indicating that its source in that direction would 
be found at a great distance." 

The furthest angle of the river which Broughton reached 
was called by him Point Vancouver, and upon it stands in the 
present day Fort Vancouver, the chief establishment of the 
Hudson's Bay Company. A little above this are the Cas- 
cades, a series of falls and rajiids extending more than half a 



106 

mile, which form the limit of the tide-way ; about thirty miles 
higher up are the Dalles, where the river rushes rapidly be- 
tween vast masses of rocks, and about four miles further are 
the Chutes or Falls of the Columbia, where the river first 
enters the gap in the Cascade mountains, through which it 
finds its way to the ocean. Lieutenant Broughton, having 
occupied twelve days in the examination of the channel, pre- 
pared to join the Discovery without delay ; but for four days 
the surf broke across the passage of the bar with such vio- 
lence, as to leave no apparent opening. At last he succeeded 
in beating out, the Jenny schooner leading, as her command- 
er Mr. Baker was better acquainted with the course of the 
channel, and after nearly losing their launch and the boat- 
keeper in the surf, they once more reached the open sea. 
Such is the summary of the account, which may be perused in 
full in the second volume of Vancouver's Voyage. 

Mr. Greenhow (p. 248) considers that the distinction which 
Broughton and Vancouver made " between the upper and 
lower portion of the Columbia, is entirely destitute of founda- 
tion, and at variance with the principles of our whole geogra- 
phical nomenclature. Inlets and sounds," he continues, " are 
arms of the sea running up ijito the land, and their waters, 
being supplied from the sea, are necessarily salt ; the waters 
of the Columbia are on the contrary generally fresh and pal- 
atable within ten miles of the Pacific, the violence and over- 
bearing force of the current being sufficient to prevent the fur- 
ther ingress of the ocean. The question appears at first to be 
of no consequence : the following extract from Vancouver's 
Journal will, however, serve to show that the quibble was de- 
vised by the British navigators, with the unworthy object of 
depriving Gray of the merits of his discovery : — 'Previously 
to his (Broughton's) departure, he formally took possession of 
the river, and the country in its vicinity, in his Britannic Ma- 
jesty's name, having every reason to believe that the subjects 
of no other civilised nation or state had ever entered this river 
before. In this opinion he was confirmed by Mr. Gray's 
sketch, in which it does not appear that Mr. Gray either saw 
or ever was within five leagues of its entrance.' This unjust 
view has been adopted by the British Government and wri- 
ters, and also, doubtless from inadvertency, by some distin- 
guished authors in the United States. It may, indeed, be con- 
sidered fortunate for Gray, that by communicating the particu- 
lars of hig discoveries, as ho did, to Quadra, he secured an 



VANCOUVER VINDICATED AGAINST MK. GSEENHOW. 107 

unimpeachable witness of his claims : had he not done so, 
the Avorld would probably never have learned that a citizen of 
the United States was the first to enter the greatest river 
flowing from America into the Pacific, and to find the only 
safe harbour on the long line of coast between Port San Fran- 
cisco and the Strait of Fuca." 

Mr. Greenhow may be perfectly justified in disputing the 
propriety of Lt. Eroughton's distinction. The words of the 
latter are, — " Between the ocean and that which should pro- 
perly be considered the entrance of the river, is a space from 
three to seven miles wide, intricate to navigate on account of 
the shoals that extend nearly from side to side, and it ought 
rather to be considered as a sound than as constituting a part 
of the river, since the entrance into the river, which they 
reached about dark, was found not to be more than half a 
mile wide, formed by the contracting shores of the sound." 
It may fairly be admiited that the ordinary use of the terms 
" sound," or " inlet," warrants the verbal criticism of Mr. 
Greenhow, and that they are more usually employed to dis- 
tinguish arms of the sea where there is no fresh water, or 
tideways outside the bars of rivers. Lieutenant Broughton, 
if we may judge from the context would have been more 
correct had he used the term " estuary" instead of " sound," 
for, " in common understanding," as Lord Stowell has ob- 
served, " the embouchure or mouth of a river is that spot 
where the river enters the open space to which the sea flows, 
and where the points of the coast project no further." (Twee 
Gebroeden, 3 Robinson's Reports, p. 34.) At the same time, 
after a careful perusal of Vancouver's journal, a protest must 
be entered against any reader of that work, particularly 
against one who occupies the position which Mr. Greenhow 
fills, attributing such motives to the British navigator, or in- 
sinuating such a probability as that Gray's discovery would 
have been suppressed by Vancouver, had not Gray fortunately 
secured Quadra as an unimpeachable witness to it. Mr. 
Greenhow's jealousy for the fame of his countryman may 
be excusable up to a certain point, but when he states that 
Vancouver "did not hesitate to adopt unworthy means to 
deprive the Americans of the reputation which they had justly 
earned by their labours in explorina;, and to blacken their 
characters as individuals," he has allowed an unreasonable 
sensitiveness to hurry him into the commission of the very 
fault which he censures iu others, and has laid himself open 



108 PROGRESSIVE DISCOVERY OF THE COLUMBIA RIVER. 

to the identical charge, mutatis mutandis, which he has set up 
against Vancouver. 

Had there been any suhslantial misrepresentation on the 
part of Vancouver in respect to what Gray actually did dis- 
cover, " a want of good faith" might have been reasonably 
imputed to him. Happily, however, for Vancouver's memory, 
the extract from the log-book of the Columbia bears out all 
the facts which Lieutenant Broughton alleges as to the extent 
of Gray's researches. " From this point," the latter says, 
alluding to a remarkable projecting point on the southern 
side, appearing like an island, a little above Point George, to 
which the name of Tongue Point was given, " was seen the 
centre of a deep bay, lying at the distance of seven miles N. 
26 E. This bay terminated the researches of Mr. Gray ; and 
to commemorate his discovery, it was called after him, Gray's 
Bay." "In Mr. Gray's sketch," Broughton further informs 
us, " an anchor was placed in this bay," so that he does not 
attempt in any way to misrepresent the locality of the spot 
where Gray's researches terminated. Lieutenant Broughton 
certainly denies the correctness of the sketch in respect to 
the distance of this bay from the entrance of the river. " It 
was not more," he writes, " than fifteen miles from Cape Dis- 
appointment, though according to the sketch it measures 
thirty.six miles." But the log-book itself confirms approxi- 
matively Lieutenant Broughton's statement, for it makes the 
distance of the spot where Gray brought up his vessel to be 
about twenty-two or twenty-five miles from the entrance 
between the bars, and Cape Disappointment is six miles dis- 
tant from the entrance, so that there must have been an error 
in the sketch, if we admit the accuracy of the log-book. 

The result of this inquiry seems fully to warrant the posi- 
tion which the British commissioners insisted on in 1826-7, 
that the discovery of the Columbia river was a •progressive 
discovery. Heceta made the first step in 1775, when he dis- 
covered the bay, and concluded that " the place was the mouth 
of some great river, or of some passage to another sea ;" but 
Heceta's report was not made public by the Spanish authori- 
ties. Meares, in 1788, confirmed Heceta's discovery of the 
bay, but impugned the correctness of the Spanish charts, as 
to there being a river there with a good port ; his Voyages 
were published in London in 1790. Vancouver, having seen 
Meares' account before he left England, examined the bay in 
April 1792, and at that time came to the conclusion that, though 



i 



CLAIM or THE UNITED STATES. 109 

there was river-coloured water in the bay, yet the opening 
was not worthy of attention, as being inaccessible to vessels 
of the same burden as the Discovery: his account was pub- 
lished in 1798. Gray, in the May following, after having on 
ii loruier occasion beat about in the bay tor nine days ineffec- 
tually, succeeded on his second visit in passing the bar, ana 
explored the estuary tor more than twenty miles : the extract, 
of his log-book, which relates the particulars, was not made 
public before 1816. Lieutenant Broughton in the same year 
may be considered to have completed the discovery of the 
river, by ascending it for more than eighty miles above the 
limits of Gray's researches, almost to the foot of the Cascades, 
where the tide ceases to be felt : the particulars of this expe- 
dition were published in the 2nd vol. of Vancouver's Voyage, 
in 1798. 

The plenipotentiary of the United States, Mr. Gallatin, on 
the other hand, repudiated the notion of Gray's enterprise 
being considered as only a step in the progress of discovery, 
and maintained that the discovery of the river belonged ex- 
clusively to the United States ; that Quadra (or he should 
have said, Heceta) had overlooked it ; that Meares had like- 
wise failed, and Vancouver had been not more fortunate ; 
and that Broughton's merit consisted merely in performing 
with fidelity the mechanical duty of taking the soundings 100 
miles up its course. Upon the fact of this asserted first dis- 
covery in 1792, followed by the settlement of Astoria in 1812, 
Mr. Rush, announced, for the first time, in 1824, "that the 
United States claimed in their own right, and in their abso- 
lute and exclusive sovereignty and dominion, the whole of the 
country west of the Rocky Mountains from the 42d to at least 
as far up as the 51st degree of north latitude." "It had been 
ascertained that the Columbia extended by the River Mult- 
nomah to as low as 42 degrees north, and by Clarke's river 
to a point as high up as 51 degrees, if not beyond that point; 
and to this entire range of country, contiguous to the original 
dominions, and made a part of it by the almost intermingling 
waters of each, the United States," he said, "considered their 
title as established, by all the principles that had ever been 
applied on this subject by the powers of Europe to settlements 
in the American hemisphere. I asserted," he continued, 
" that a nation discovering a country, by entering the mouth 
of its principal river at the sea coast, must necessarily be 
allowed to claim and hold as great an extent of the interior 

6 



110 DENIED BY GREAT BKITAIN. 

country as was described by the course of such principal 
river, and its tributary streams." 

Great Britain formally entered her dissent to such a claim, 
denying that such a principle or usage had been ever recog- 
nised amongst the nations of Europe, or that the expedition of 
Captain Gray, being one of a purely mercantile character, 
was entitled to carry with it such important national conse- 
quences, (British and Foreign State Papers, 1825-6.) 

In the subsequent discussions of 1826-7, Great Britain con- 
sidered it equally due to herself and to other powers to renew 
her protest against the doctrine of the United States, whilst 
on the other hand the United States continued to maintain, 
that Gray's discovery of the Columbia river gave, by the ac- 
knowledged law and usage of nations, a right to the whole 
country drained by that river and its tributary streams. 

Having now passed in review the main facts connected 
with the discovery and occupation of the Oregon territory, we 
may proceed to consider the general principles of international 
law which regulate territorial title. 



Ill 



CHAPTER VII. 



ON THE ACQUISITION OF TERRITORY BY OCCUPATION. 

Connexion of the Sovereignty of a Nation with the Domain. — Vattel. 
The Sovereignty and Eminent Domain (Dominium eminens) attend 
on Settlement by a Nation. — Settlement by an Individual limited to the 
Acquisition of the Useful Domain (Dominium utile.) A Nation may 
occupy a Country by its Agents, as by settling a Colony. Kluber's 
Droits des Gens. — The Occupation must be the Act of the State. — 
Occupation constitutes a perfect Title. — Bracton de Legibus. — Wolff's 
Jus Gentium. — Acts accessorial to Occupation, such as Discovery, 
Settlement, &c., create only an imperfect Title. 

" When a nation takes possession of a country to which no 
prior owner can lay claim, it is considered as acquiring the 
empire or sovereignty over it, at the same time with the do- 
main. For, since the nation is free and independent, it can 
have no intention, in settling in a country, to leave to others 
the rights of command, or any of those rights that constitute 
sovereignty? The whole space over which a nation ex- 
tends its government, becomes the seat of its jurisdiction, and 
is called its territory.'^ (Vattel, b. i., § 205.) 

The acquisition of sovereignty, therefore, attends as a 
necessary consequence upon the establishment of a nation in 
a country. But a nation may establish itself in a country, 
either by immigration in a body, or by sending forth a colony ; 
and when a nation takes possession of a vacant country, and 
settles a colony there, " that country, though separated from 
the principal establishment or mother country, naturally be- 
comes a part of the state, equally with its ancient posses- 
sions, (Vattel, b. i., § 210.) 

The right o^ domain in a nation corresponds to the right of 
property in an individual. But every nation that governs 
itself by its own authority and laws, without dependence on 
any foreign power, is a sovereign state ; and when it acts as 
a nation, it acts in a sovereign capacity. When a nation 
therefore occupies a vacant country, it imports its sovereignty 
with it, and its sovereignty entitles it not merely to a dis- 



112 TERRITORIAL OCCUPATION. 

posing power over all the property within it, which is termed 
its Eminent Domain, but likewise to an exclusive right of 
command in all places of the country which it has taken pos- 
session ot. In this respect, then, a nation differs from an 
individual, tfiat, aitnougn an mdependent individual may settio 
in a country which he finds without an owner, and there 
possess an independent domain (the dominium utile, as dis- 
tinguished from the dominium eminens,) yet he cannot arro- 
gate to himself an exclusive right to the country, or to the 
empire over it. His occupation of it would be, as against 
other nations, rash and ridiculous (Vattel, b. ii., § 96 ;) and it 
would be termed, in the language of the Jus Gentium, a 
" temeraria occupatio, quae nullum juris effectum parere 
potest," (Wolffii Jus Gentium, § 308.) 

A nation, however, may delegate its sovereign authority to 
one or more of its members for the occupation of a vacant 
country, equally as for other purposes, where it cannot act in 
a body ; in such cases the practice of nations allows it to be 
represented by an agent. Thus the right of settling a colony 
is a right of occupation by an agent. The colonists represent 
the nation which has sent them forth, and occupy their new 
country in the name of the mother country. But the colonists 
must be sent forth hy the public authority of the nation, other- 
wise they will possess no national character, but will be con- 
sidered to be a body o^ emigrants, who have abandoned their 
country. 

Thus, Kluber, in his " Droit des Gens Modernes de 
I'Europe :" — " Un etat peut acquerir des choses qui n'appar- 
tiennent a personne (res nullius) par I'occupation (originaire ;) 
les biens d'autrui au moyen de conventions (occupation 
derivative.) .... Pour que Voccupation soit legitime, la 
chose doit etre susceptible d'une proprieto exclusive ; elle ne 
doit appartenir a personne ; Vetat doit avoir Vintention iVen 
acquerir la proprictc, ct en prendre possession (the State ought 
to have an intention to acquire the right of property in it, and 
to take possession of it ;) c'est a dire, la mettre entierement 
a sa disposition et dans son pouvoir physique." 

Occupation, then, in this sense of the word, denotes the 
taking possession of a territory previously vacant, which has 
either always been unoccupied, or, if ever occupied, has been 
since abandoned. It constitutes a perfect title, and its foun- 
dation may l)e referred to an axiom of natural law : " Quod 
enim ante nullius est, id ratione naturali occupanti conceditur." 



AN ACT OP THE STATE. 113 

(Dig. 1. 3, D. de Acq. Rer. Dom.) This principle, engrafted 
into the Roman law, was as fully recognised by Bracton and 
by Fleta : — " Jure autem gentium sive naturali dominia 
rerum acquiruntur multis modis. Imprimis, per occupationem 
eorum, quae non sunt in bonis alicujus, et quae nunc sunt 
ipsius regis de jure civili, et non communia ut olim, (Bracton 
de Leg,, 1. ii., c. 1.) 

Amongst professed writers upon international law, Wolff, 
who is justly considered as the founder of the science, and 
who, in his voluminous writings, furnished the stores out of 
which Vattel compiled his " Law of Nations," has set forth 
so clearly this principle, as that upon which title by occupa- 
tion is based, that his words may be quoted from Luzac's 
French translation of his " Institutions du Droit de la Nature 
et des Gens :" — 

" On appelle occupation, un fait par lequel quelqu'un declare 
qu'une chose qui n'est k personne doit etre a lui, et la reduit 
en tel etat qu'elle pent etre sa chose. II parait de la, que le 
droit d'occuper une chose, ou de s'en emparer, appartient na- 
turellement a chacun indifferemment, ou bien que c'est un droit 
commun de tons les hommes, et comme on appelle maniere 
primitive d'acquerir, celle par laquelle on acquiert le domaine 
d'une chose qui n'est a personne, il s'ensuit que Voccupation 
est la maniere 'primitive d'acquerir.'^ (Part ii., ch. ii., § ccx.) 

As, however, the term occupation has come to signify in 
common parlance rather a temporary holding than a perma- 
nent possession,^ — e. g., the occupation of Ancona by the 
French, the occupation of Lisbon by the English, the occupa- 
tion of the Four Legations by the Austrians, there is an incon- 
venience in its ambiguity, and from this circumstance it has 
resulted, that occupancy is frequently employed to designate 
what is, properly speaking, occupation. This however is to 
be regretted, as the word occupancy is required in its own 
sense to mark the right to take possession, as distinct from 
the right to keep possession, — the jus possidendi from the jus 
possessionis, — the jus ad rem, as civilians would say, from 
the jus in re. Thus the right of a nation to colonise a given 
territory to the exclusion of other nations is a right of occu- 
pancy ; the right of the colonists to exclude foreigners from 
their settlements would be a right of occupation. 

Mr. Wheaton, in his Elements of International Law, (1. i., 
chap, iv., p. 205,) says, " The exclusive right of every inde- 
pendent state to its territory and other property is founded 



11 ACTS ACCESSORIAL TO OCCUPATION. 

upon the title originally acquired by occupancy, and subse- 
quently confirmed by the presumption arising from the lapse 
of time, or by treaties and other compacts of foreign states." 

It may be gathered from these writers, that to constitute a 
valid territorial title by occupation, the territory must be pre- 
viously vacant {res mdlius,) and the state must intend to take 
and maintain possession : and that the vacancy of the territory 
may be presumed from the absence of inhabitants, and will 
be placed beyond question by the acquiescence of other na- 
tions. If those conditions are fulfilled, the proprietary title 
which results is a perfect title against all other nations. 

There are however several acts, that are accessorial to 
occupation, which do not separately constitute a perfect title. 
Such acts are Discovery, Settlement, Demarcation. Thus, 
discovery, may not be accompanied with any intention to 
occupy, or may not be followed up by any act of occupation 
within a reasonable time ; settlement may be effected in terri- 
tory not vacant ; boundaries may be marked out which en- 
croach upon the territory of others ; so that acts of this kind 
will, separately, only found an imperfect or conditional title : 
their combination, however, under given circumstances, may 
establish an absolute and perfect title. 



115 



CHAPTER VIII. 



ON TITLE BY DISCOVERY. 



Discovery not recognised by the Roman law. — WolfF. — The Discovery 
must be notiiied. — Illustration of the Principle in reference to Nootka 
Sound- — Vattel. — Discovery must be by virtue of a Commission from 
the Sovereign. — Must not be a transient Act. — Martens' Precis du Droit 
des Gens. — Kluber. — Bynkershoek. — Mr Wheaton. — Practice of Na- 
tions. — Queen Elizabeth. — Negotiations between Great Britain and the 
United States, in 1824. — Nootka Sound Controversy.^ — Discussions be- 
tween the United States and Russia, in 182S. — Declaration of British 
Commissioners, in 1826. — Mr. Gallatin's View. — Conditions attached 
to Discovery. — No second Discovery. — WolfF. — Lord Stowell. — Pro- 
gressive Discovery. — Dormant Discoveries inoperative for Title. 

Among the acts which are accessorial to occupation, the 
chief is Discovery. The title, however, which results from 
discovery, is only an imperfect title. It is not recognised in 
the Roman law, nor has it a place in the systems of Grotius 
or PufFendorfF. The principle, however, upon which it is 
based is noticed by Wolff: — 

" Pareillement, si quelqu'un renferme un fonds de terre dans 
des limites, ou la destine a quelque usage par un acte non 
passager, pu qui,^ se tenant sur ce fonds limite, il dise en pre- 
sence d'autres hommes, qu'il veut que ce fonds soit a lui, il 
s'empare." (Institutes du Droit des Gens, § 213.) 

To this passage M. Luzac has appended the following note, 
pointing out the application of the principle to international 
relations : — 

" Nous ne trouvons pas cette occupation dans le droit Re- 
main. C'est sur elle que sent fondes les droits que les 
puissances s'attribuent, en vertu des decouvertes." 

It will be seen from the text of M. Wolff, that the intention 
to take possession at the time of discovery must be declared. 
The comity of nations, then, presumes that the execution will 
follow the intention. But the reason of the thing requires that 
the discovery should be notified at the time when it takes 
place, otherwise, where actual possession has not ensued, the 
presumption will be altogether against a discovery, or if there 



lie NOOTKA BOUND. 

had been a discovery, that it was a mere passing act, that the 
territory was never taken possession of, or if so, was aban- 
doned immediately. Unless then the intention to appropriate 
can be presumed from the announcement of the discovery, 
which the comity of nations will respect, — if the first comer 
has not taken actual possession, but has passed on, the pre- 
sumption will be that he never intended to appropriate the 
territory. Thus a discovery, when it has been concealed 
from other nations, has never been recognised as a good 
title : it is an inoperative act. 

A case in point may be cited to illustrate the application of 
this principle. Mr. Greenhow (p. 116) observes, in refer- 
ence to the voyage of Perez in 1775, — "The Government of 
Spain perhaps acted wisely in concealing the accounts of this 
expedition, which reflected little honour on the courage or the 
science of the navigators : but it has thereby deprived itself 
of the means of establishing beyond question the claim of 
Perez to the discovery of the important harbour called Nootka 
Sound, which is now, by general consent, assigned to Captain 
Cook." 

Vattel (b. i., 1. xviii., § 207) discusses this title at large : — 

" All mankind have an equal right to things that have not 
yet fallen into the possession of any one, and those things be- 
long to the person who first takes possession of them. When 
therefore a nation finds a country uninhabited, and without an 
owner, it may lawfully take possession of it, and after it has 
siifficiently made knoum its will in this respect, it cannot be 
deprived of it by another nation. Thus navigators going on 
voyages of discovery, furnished with a commission from their 
sovereign, and meeting with islands or other lands in a desert 
state, have taken possession of them in the name of the na- 
tion ; and this title has been usually respected, provided it 
was soon after followed by a real possession." 

According to this statement, the act of discovery must be 
sanctioned by a commission from the sovereign, and the will 
of the nation to take possession must be by its agent suffi- 
ciently made known. What acts should be respected by the 
courtesy of nations, and be held sufficient to make known for- 
mally the will of a nation to avail itself of a discovery, has 
been a subject of much dispute. The tendency, however, 
both of writers and statesmen, has been to limit rather than 
to extend the title by discovery, ever since the Papal Bulls of 



TRANSIENT VISITS. 117 

the 16th century enlarged it to an inconvenient extent, to the 
exclusive benefit of two favoured nations. 

Thus Vattel : — " The law of nations will, therefore, not 
acknowledge the property and sovereignty of a nation over 
any uninhabited countries except those of which it has really 
taken actual possession, in which it has formed settlements, or of 
which it makes actual use. In effect, when navigators have 
met with desert countries in which those of other nations had, 
in their transient visits, erected some monuments to show 
their having taken possession of them, they have paid as little 
regard to that empty ceremony as to the regulation of the 
Popes, who divided a great part of the world between the 
crowns of Castile and Portugal." 

To the same purport, Martens, in his Precis du Droit des 
Gens, § 37 : — 

Suppose que I'occupation soit possible, il faut encore qu'elle 
ait eu lieu effectivement, — que le fait de la prise de possession 
ait concouru avec la volonte manifesto de s'en approprier 
I'objet. La simple declaration de volonte d'une nation ne 
suffit pas non plus qu'une donation papale, ou une convention 
entre deux nations pour imposer a d'autres le devoir de 
s'abstenir de I'usage ou de I'occupation de I'objet en question. 
Le simple fait d'avoir ete le premier a decouvrir ou a visiter 
une ile, &;c., abandonnee ensuite, semble insuffisant, memo de 
I'aveu des nations, tant qii'on n'a point laisse de traces 
permanentes de possession et de volonte, et ce n'est pas sans 
raison qu'on a souvent dispute entre les nations, comme entre 
les philosophes, si des croix, des poteaux, des inscriptions, &;c., 
saffisent pour acqucrir ou pour conserver la propriete exclusive 
d'un pays qu'on ne cultive pas." 

Kluber, to the same effect, writes thus : (§ 126) — " Pour 
acquerir line chose par le moyen de I'occupation, il ne sufBt 
point d'en avoir seulement I'intention, ou de s'attribuer une 
possession purement mentale ; la declaration meme de vouloir 
occuper, faite anterieurement a I'occupation effectuee par un 
autre, ne suffirait pas. II faut qu'on ait reellement occupe le 
premiei, et c'est par cela seul qu'en acquerant un droit ex- 
clusif sur la chose, on impose a tout tiers I'obligation de s'en 
abstenir. L'occupation d'une partie inhabitee et sans maltre 
du globe de la terre, ne pent done s'etendre plus loin qu'on 
ne pent tenir pour constant qu'il y ait eu effectivement pW^e 
de possession, dans I intention de s''attrihuer la propriete* 
Comme preuves d'une pareille prise de possession, ainsi que 

6* 



118 THEORY OF JURISTS. 

de la continuation de la possession en propriete, peuvent 
servir tous les signes exterieurs qui marquent I'occupation et 
la possession continue." 

On this passage there is the following note : — " Le droit 
de propriete d'etat peut, d'aprcs le droit des gens, continuer 
d'exister, sans que I'etat continue la possession corporelle. 
II suffit qu'il existe un signe qui dit, que la chose n'est ni res 
nulUuSi ni delaissee. En pareil cas personne ne saurait 
s'approprier la chose, sans ravir de fait, a celui qui I'a possedee 
jusqu'alors en propriete, ce qu'il y a opere de son influence 
d'une maniere legitime : enlever ceci ce serait blesser le droit 
du proprietaire." 

It would be difficult to determine theoretically what would 
constitute a sufficient sign that the territory is not vacant, 
or abandoned. Bynkershoek, who was opposed to the con- 
tinuance of proprietary right from discovery, unless corporeal 
possession was maintained, subsequently qualified his view. 
*' Procter animum possessionem desidero, sed qualemcunque, 
quae probet, me nee corpore desiisse possidere." (De Dominio 
Maris, ch. i., De Origine Dominii.) 

Mr. Wheaton, in his work on International Law, (vol. i.,ch. 
iv., § 5, ) writes thus : — " The claim of European nations to 
the possessions held by them in the New World discovered by 
Columbus and other adventurers, and to the territories which 
they have acquired on the continents and islands of Africa 
and Asia, was originally derived from discovery or conquest 
and colonisation, and has since been confirmed in the same 
manner by positive compact." 

The practice of nations seems fully to bear out the theory 
of jurists, as it may be gathered from the language of 
sovereigns and statesmen. Thus, in reference to the north- 
west coast of America, on occasion of the earliest dispute be- 
tween the crowns of Spain and England, Queen Elizabeth 
refused to admit the exckisive pretensions of the Spaniards. 
When Mcndoza,the Spanish ambassador, remonstrated against 
the expedition of Drake, she replied, " that she did not under- 
stand why either her subjects, or those of any other European 
prince, should be debarred from traffic in the Indies : that, as 
she did not acknowledge the Spaniards to have any title by 
donation of the Bishop of Rome, so she knew no right they 
had to any places other than those they were in actual pos- 
session of ; for that their having touched only here and there 
upon a coast, and given names to a few rivers or capes, were 



PRACTICE OF NATIONS. 119 

such insignificant things as could in no ways entitle them to 
a propriety further than in the parts where they actually 
settled, and continued to inhabit." (Camden's Annals, anno 
1580.) 

Such was the language of the Crown of England in the 
sixteenth century, and in no respect is the language of Great 
Britain altered in the present day. Thus, in reference to the 
negotiations between Great Britain and the United States, in 
1824, Mr. Rush, in a letter to Mr. Adams, of August 12, 1824, 
writes thus : — " As to the alleged prior discoveries of Spain 
all along that coast, Britain did not admit them, but with 
great qualification. She could never admit that the mere fact 
of Spanish navigators having first seen the coast at particular 
points, even where this was capable of being substantiated as 
the fact, without any subsequent or efficient acts of sovereignty 
or settlement following on the part of Spain, was sufficient to 
exclude all other nations from that portion of the globe." 
(State Papers, 1825-26, p. «12.) 

But the Spanish crown itself, on the occasion of the 
Nootka Sound controversy, felt that a claim to exclusive 
territorial title could not be reasonably maintained on the plea 
of mere discovery. Thus, in the Declaration of his Catholic 
Majesty, on June 4, 1790, which was transmitted to all the 
European Courts, and consequently bound the Crown of 
Spain in the face of all nations, the following precise language 
was employed : — 

" Nevertheless, the King does deny what the enemies to 
peace have industriously circulated, that Spain extends pre- 
tensions and rights of sovereignty over the whole of the South 
Sea, as far as China. When the words are made use of, ' In 
the name of the King, his sovereignty, navigation, and ex- 
clusive commerce to the continent and islands of the South 
Sea,' it is the manner in which Spain, in speaking of the 
Indies, has always used these words, — that is to say, to the 
continent, islands, and seas which belong to his Majesty, so 
far as discoveries have been made and secured to him hy treaties 
and immemorial possession^ and uniformly acquiesced in, not- 
withstanding some infringements by individuals, who have 
been punished upon knowledge of their offences. And the 
King sets up no pretensions to any possessions, the right to 
which he cannot prove by irrefragable titles." 

The pretensions of Spain to absolute sovereignty, com- 



120 BRITISH DOCTRINE. 

merce, and navigation, had already been rejected by the 
British Government, and they had insisted that English sub. 
jeets, trading under the British flag, " have an indisputable 
right to the enjoyment of a free and uninterrupted navigation, 
commerce, and fishery ; and to the possession of such esta- 
blishments as they should form, with the consent of the natives 
of the country, not previously occupied by any of the European 
nations. 

Again, the Crown of Spain, in demanding assistance from 
France, according to the engagements of the Family Com- 
pact, rested her supposed title upon " treaties, demarcations, 
takings of possession, and the most decided acts of sovereignty 
exercised by the Spaniards from the reign of Charles If., and 
authorised by that monarch in 1692." 

It will thus be seen that Spain, in setting up a title by dis- 
covery, supported her claims by alleging that the act was au- 
thorised by the Crown, was attended with " takings of pos- 
session," and was confirmed by treaties, e. g., that of Utrecht. 

To a similar purport, in the discussions which took place 
between Russia and the United States of America, in respect 
to the north-west coast of America, which ultimately resulted 
in the convention signed at St. Petersburgh, fj April, 1824, 
the Chevalier de Poletica,the Russian minister at Washington, 
in his letter of 28th February, 1822, to the American Secre- 
tary of State, grounded the claims of Russia upon these threo 
bases, as required by the general law of nations and imme- 
morial usage among nations : — " The title of first discovery ; 
the title of first occupation ; and, in the last place, that which 
results from a peaceable and uncontested possession of more 
than half a century." (British and Foreign State Papers, 
1821-22, p. 485.) 

To a similar purport the British Commissioners, Messrs. 
Huskisson and Addington, in the sixth conference held at 
London, December 16, 1826, maintained this doctrine : — 
" Upon the question how far prior discovery constitutes a 
legal claim to sovereignty, the law of nations is somewhat 
vague and undefined. It is, however, admitted by the most 
approved writers, that mere accidental discovery, unattended 
by exploration — by formally taking possession in the namo 
*of the discoverer's sovereign — by occupation and settlement, 
more or less permanent — by purchase of the territory, or re- 
ceiving the sovereignty from the natives — constitutes the 



CONDITIONS ATTACHED TO DISCOVERY. 121 

lowest degree of title ; and that it is only in proportion as first 
discovery is followed by any or all of these acts, that such 
title is strengthened and confirmed." 

In accordance with the same view, the plenipotentiary of 
the United States, Mr. Gallatin, in his counter-statement, 
which Mr. Greenhow has appended to the second edition of 
his work, asserts that " Prior discovery gives a right to occu- 
py, provided that occupancy take place within a reasonable 
time, and is followed by permanent settlements and by the 
cultivation of the soil." 

It thus seems to be universally acknowledged, that dis- 
covery, though it gives a right of occupancy, does not found 
the same perfect and exclusive title which grows out of occu- 
pation ; and that unless discovery be followed within a 
reasonable time by some sort of settlement, it will be presumed 
either to have been originally inoperative, or to have been 
subsequently abandoned. 

It seems likewise to be fully recognised by the law of 
nations, as based upon principles of natural law, and as 
gathered from the language of negotiations and conventions, 
that in order that discovery should constitute an inchoate 
title to territory, it must have been authorised by the 
sovereign power, must have been accompanied by some act 
of taking possession significative of the intention to occupy, 
and must have been made known to other nations. 

'» Thus Lord Stowell (in the Fama, 3 Rob. p. 115) lays it 
down, that " even in newly discovered countries, where a title 
is meant to he established for the first time, some act of pos- 
session is usually done and proclaimed as a notijicatiGn of the 
fact. 

There can be no second discovery of a country. In this 
respect title by discovery differs from title by settlement. A 
title by a later settlement may be set up against a title by an 
earlier settlement, even where this has been formed by the 
first occupant, if the earlier settlement can be shown to have 
been abandoned. 

M. Wolff explains the reason of this very clearly (§ cciii.:) — 
On dit qu'une chose est abandonnee, si simplement son maitre 
ne veut pas qu'elle soit plus long temps sienne, c'est a dire, 
que I'acte de sa volonte ne coutienne rien de plus que ceci, 
que la chose ne doit plus etre a lui. D'ou il paroit, que celui 
qui abandonne une chose cesse d'en etre le maitre, et que par 
consequent une chose abandonnee devient une chose qui n'est 



122 PROGRESSIVE DISCOVERY. 

a personne ; mais qu'aussi long temps que le maitre n'a pas 
rintention d'abandonner sa chose, il en reste le maitre." 

The same writer observes elsewhere ( § mcxxxix.) — 
" L'abandon requis pour I'usucaption, et pour la prescription 
qui en est la suite, ne se presume pas aussi aisoment centre 
les nations qu'entre les particuliers, a cause d'un long silence." 

A title by second discovery cannot, from the nature of the 
thing, be set up against a title by first discovery. The term 
second discovery itself involves a contradiction, and where 
the discovery has been progressive, " further discovery" would 
seem to be the more correct phrase, A case can certainly be 
imagined, where a later discovery may be entitled to greater 
consideration than a prior discovery, namely, where the prior 
discovery has been kept secret ; but in such a case the prior 
discovery is not a discovery which the law of nations re- 
cognises, for it has not been made known, at the time when 
it took place, to other nations ; and the inconvenience which 
would attend the setting up of claims of discovery long subse- 
quently to the event upon which they are professed to be based, 
would be so great, that the comity of nations does not admit 
it. The comity of nations, indeed, in sanctioning title by dis- 
covery at all, as distinct from title by occupation, has sought 
to strengthen rather than to impugn the proprietary right of 
nations ; but no territorial title would be safe from question, if 
the dormant ashes of alleged discoveries might at any time be 
raked up. 



123 



CHAPTER IX. 



TITLE BY SETTLEMENT. 



Title by Settlement an imperfect Title. — Presumption of Law in its Fa- 
vour. — Made perfect by undisturbed Possession. — Wheaton. — Title by 
Usucaption or Prescription. — Vattel. — Acquiescence a Bar to conflict- 
ing Title of Discovery. — Hudson's Bay Settlements. — Treaty of Utrecht. 
— The Vicinitas of the Roman Law. — Mid-channel of Rivers. — Conti- 
guity, as between conterminous States, a reciprocal Title. — Negotia- 
tions between Spain and the United States of America. — Vattel. — Ter- 
ritorial Limits extended by the Necessity of the Case — Right of Mari- 
time Jurisdiction, how far accessorial to Right of Territory. — Right of 
Pre-emption. — New Zealand. — North American Indians. — Right of 
innocent Use. 

Title by settlement, like title by discovery, is of itself an im- 
perfect title, and its validity will be conditional upon the ter- 
ritory being vacant at the time of the settlement, either as 
never having been occupied, or as having been abandoned by 
the previous occupant. In the former case, it resolves itself 
into title by occupation ; in the latter, the consent of the pre- 
vious occupant is either expressed by some convention, or pre- 
sumed from the possession remaining undisputed. Title by 
settlement, however, differs from title by discovery, or title by 
occupation, in this respect, — that no second discovery, no se- 
cond occupation can take place, but a series of settlements 
may have been successively made and in their turn abandon- 
ed, so that the last settlement, when confirmed by a certain 
prescription, may found a good territorial title. Again, the 
presumption of law will always be in favour of a title by set- 
tlement. *' Commodum possidentis in eo est, quod etiamsi 
ejus res non sit, qui possidet, si modo actor non potuerit suam 
esse probare, remanct in suo loco possessio ; propter quam 
causam, cum obscura sint utriusque jura contra petitorem judi- 
cari solet." (Inst., 1. iv., tit. 15, § 4.) 

Where title by settlement is superadded to title by disco- 
very, the law of nations will acknowledge the settlers to have 
a perfect title ; but where title by settlement is opposed to 
title by discovery, although no convention can be cited in 



124 UNDISTURBED POSSESSION. 

proof of the discovery having been waived, still, a tacit acqui- 
escence on the part of the nation that asserts the discovery, 
during a reasonable lapse of time since the settlement has 
taken place, will bar its claim to disturb the settlement. Thus, 
Mr. Wheaton (part ii., chap, iv., § 5) writes : — " The con- 
stant and approved practice of nations shows, that by what- 
ever name it be called, the uninterrupted possession of terri- 
tory or other property, for a certain length of time, by one 
state, excludes the claim of every other, in the same manner 
as by the law of nations, and the municipal code of every 
civilized nation, a similar possession by an individual excludes 
the claim of every other person to the article of property in 
question. This rule is founded upon the supposition, confirm- 
ed by constant experience, that every person will naturally 
seek to enjoy that which belongs to him ; and the inference 
fairly to be drawn from his silence and neglect, of the original 
defect of his title, or his intention to relinquish it." 

Title, then, by settlement, though originally imperfect, may 
be thus perfected by enjoyment during a reasonable lapse of 
time, the presumption of law from undisturbed possession 
being, that there is no prior owner, because there is no claim- 
ant, — no better proprietary right, because there is no asserted 
right. The silence of other parties presumes their acquies- 
cence : and their acquiescence presumes a defect of title on 
their part, or an abandonment of their title. A title once 
abandoned, whether tacitly or expressly, cannot be resumed. 
" Celui qui abandonne une chose cesse d'en etre le maitre, 
et par consequent une chose abandonnee devient une chose 
qui n'est a personne." (Wolff, cciii.) 

Title by settlement, then, as distinguished from title by dis- 
covery, when set up as a perfect title, must resolve itself into 
title by usucaption or jvescription. Wollf defines usucaption 
to be an acquisition of domain founded on a presumed deser- 
tion. Vattel says it is the acquisition of domain founded on 
long possession, uninterrupted and undisputed, that is to say, 
an acquisition solely proved by this possession. Prescription, 
on the other hand, according to the same author, is the excki- 
sion of all pretensions to a right — an exclusion founded on the 
length of time during which that right has been neglected ; 
or, according to Wolff's definition, it is the loss of an inherent 
right by virtue of a presumed consent. Vattel, writing in 
P'rench, and observing that the word usucaption was but little 
used in that language, made .use of the word iirescripiion when- 



TITLE BY PRESCRIPTIOiV. 125 

ever there were no particular reasons for employing the other. 
The same remark may be applied in reference to our own lan- 
guage, and thus this title is generally spoken of as title by 
prescription. 

What lapse of time is requisite to found a valid title by 
prescription has not been definitely settled. The law of na- 
ture suggests no rule. Where, however, the claimant cannot 
allege undoubted ignorance on his part, or on the part of 
those from whom he derives his right, or cannot justify his 
silence by lawful and substantial reasons, or has neglected his 
right for a sufficient number of years as to allow the respec- 
tive rights of the two parties to become doubtful, the presump- 
tion of relinquishment will be estabhshed against him, and he 
will be excluded by ordinary prescription. Lapse of time, in 
the case equally of nations as of individuals, robs the parties 
of the means of proof : so that if a bond fide possession were 
allowed to be questioned by those who have acquiesced for a 
long time in its enjoyment by the possessors, length of posses- 
sion, instead of strengthening, would weaken territorial title. 
This result would be so generally inconvenient, as to be inad» 
missible. 

Thus, in regard to the territories of the Hudson's Bay Com- 
pany, it was alleged in the negotiations preliminary to the 
Treaty of Utrecht, that the French had acquiesced in the vset- 
tlement of the Bay of Hudson by the Company incorporated 
by Charles H. in 1663 ; since M. Fontenac, the Governor of 
Canada, in his correspondence with Mr. Baily, who was Go- 
vernor of the Factories in 1637, never complained, " for seve- 
ral years, of any pretended injury done to the French by the 
said Company's settling a trade and building of forts at the 
bottom of the bay." (General Collection of Treaties, &c. 
London, 1710-33, vol. i., p. 446.) The King of England, it 
is true, in his charter had set forth the title of the British 
Crown, as founded on discovery : the title by discovery, how- 
ever, required to be perfected by settlement ; and thus, in the 
negotiations, the subsidiary title by settlement was likewise 
set up by the British Commissioners, and the acquiescence of 
the French was alleged, either as a bar to their setting up any 
conflicting title by discovery, or as establishing the presump- 
tion of their having abandoned their asserted right of dis- 
covery. 

What amount of contiguous territory attaches to a settle- 
ment, so as to prevent the titles of two nations from conflict* 



126 MID-CHANNEL ISLANDS. 

ing by virtue of adjoining settlements, seems to be governed 
by no fixed rule, but must depend on the circumstances of 
the case. Vattel observes (1. ii., § 95,) " If, at the same 
time, two or more nations discover and take possession of an 
island, or any other desert land ivitliout an owner^ they ought 
to agree between themselves, and make an equitable partition ; 
but, if they cannot agree, each will have the right of empire 
and the domain in the parts in which they first settled." The 
title of vic'uiitas was recognised in the Roman law, in the case 
of recent alluvial deposits, as entitling the possessor of the ad- 
joining bank to a claim of property ; but, if it were an island 
formed in the mid-channel, there was a common title to it in 
the proprietors of the two banks. " Insula nata in flumine, 
quod frequenter accidit, si quidem mediam partem fluminis te- 
net, communis est eorum, qui ab utraque parte fluminis prope 
ripam praedia possident, pro modo latitudinis cujusque fundi, 
quae latitudo prope ripam sit : quod si alteri parti proximior 
est, eorum est tantum, qui ab ea parte prope ripam praedia 
possident." (Inst, ii., tit. i., § 22.) So, in the case where a 
river abandons its former channel, the ancient bed belongs to 
those " qui prope ripam praedia possident ;" and in the Digest 
(xli., tit. i., 1. 7,) we have a case supposed where a river has 
changed its course, and occupied for a time the entire property 
(totum agrum) of an individual, and then deserted its new 
channel : the Roman law did not consider that, strictly speak- 
ing, the title of the former proprietor revived, inasmuch as he 
had no adjoining land. " Cujus tamen totum agrum novus 
alveus oecupaverit, licet ad priorem alveum reversum fuerit 
flu men ; non tamen is, cujus is ager fuerat, stricta ratione 
quicquam. in eo alveo habere potest : quia et ille ager, qui 
fuerat, desiit esse, amissa propria forma : et quia vicinum pras- 
dium nullum habet, non potest ratione vicinitatis uUam partem 
in eo alveo habere." 

Again, in the case of a river, the banks of which are pos- 
sessed by contiguous states, the presumption of law is, that 
the Thalwegs or mid-channel, is the mutual boundary ; since 
rivers are, in the case of conterminous states, communis juris, 
unless acknowledged by them to be otherwise, or prescribed 
for by one of the parties. "The general presumption," ob- 
serves Lord Stowell, (in the Twee Gebroeders, 3 Rob., p. 339,) 
" certainly bears strongly against such exclusive rights, and 
ikQ title is matter to be established on the part of those claim- 



CONTIGUITY A RECIPROCAL TITLE. 127 

ing under it, in the same manner as all other demands are to 
be substantiated, by clear and competent evidence." 

A title by contiguity, as between conterminous states, would 
thus appear to be a reciprocal title : it cannot be advanced by 
one party, excepting as a principle which sanctions a corres- 
ponding right in the other. The practice is in accordance 
with this. Thus, the United States of America, in its dis- 
cussions with Spain respecting the western boundary of Louis- 
iana, contended, that " whenever one European nation makes 
a discovery, and takes possession of any portion of that con- 
tinen-t (sc, of America,) and another afterwards does the same 
at some distance from it, where the boundary between them is 
not determined by the principle above mentioned, (sc, actual 
possession of the sea-coast,) the middle distance becomes such 
of course." (British and Foreign State Papers, 1817-18, 
p. 328.) 

Circumstances however will sometimes create exceptions, 
as for instance, where the control of a district left unoccupied 
is necessary for the security of a state, and not essential to 
that of another: in this case the principle of vicinitas would 
be overruled by higher considerations, as it would inter- 
fere with the perfect enjoyment of existing rights of established 
domain. 

Thus Vattel, 1. i., § 288. " A nation may appropriate to 
herself those things of which the free and common use would 
be prejudicial or dangerous to her. This is a second reason 
for which governments extend their dominion over the sea along 
their coasts, as far as they are able to protect their rights. It 
is of considerable importance to the safety and welfare of the 
state that a general liberty be not allowed to all comers to ap- 
proach so near their possessions, especially with ships of war, 
as to hinder the approach of trading nations, and molest their 
navigation." And again, after stating that it was not easy to 
determine strictly the limits of this right, he goes on to say : 
"Each state may, on this head, make what regulation it pleases 
so far as respects the transactions of the citizens with each 
other, or their concerns with their sovereign, but, between na- 
tion and nation, all that can reasonably be said is, that in ge- 
neral, the dominion of the state over the neighboring sea ex- 
tends as far as her safety renders it necessary and her power is 
able to assert it ; since on the one hand she cannot appropri- 
ate to herself a thing that is common to all mankind, such as 
i\iQ sea, except so far as she has need of it for some lawful end, 



128 EIGHT OP PRE-EMPTION. 

and on the other, it would be a vain and ridiculous pretension 
to claim a right which she were wholly unable to assert." At 
present, by the general law of nations, the possession of the 
coast is held to entitle a nation to exclusive jurisdiction over 
the adjoining seas to the extent of a marine league, as being 
necessary for the free execution of her own municipal laws, 
and as being within the limits which she can command by her 
cannon. On the ground then of her own right of self-preser- 
vation, a nation which has made a settlement may possess a 
perfect right of excluding other nations from settling within a 
given distance. This right, however, is evidently an accessory 
of the right of settlement. 

A further accessorial right of settlement has, in modern 
times, been recognised by the practice of civilised nations in 
both hemispheres, namely, a right of pre-emption from the 
aboriginal inhabitants in favor of the nation which has actu- 
ally settled in the country. It is this right which Great Bri- 
tain asserts against all other civilised nations in respect to 
New Zealand, and which the United States of America assert 
against all other civilised nations in respect to the native In- 
dians. The claim involved in it is evidently based upon the 
principle, that the acquisition of such territory by any other 
nation would be prejudicial to the full enjoyment of the exist- 
ing territorial rights of the nation which has made settlement 
there. Such seems to be the only recognised ground upon 
which a perfect right of contiguity can be set up. The prin- 
ciple of mere vicinity in the case of nations, unless strictly 
limited, will only result in furnishing a graceful pretext for the 
encroachments of the strong upon the weak, whenever a 
powerful state should cast a longing eye upon an adjoining 
district, and feel a natural inclination to render its own pos- 
sessions more complete : 

Oh si angulus ille 
Proximus acccdal, qui nunc deformat agellam. 

The right of innocent use seems to have been admitted into 
the code of international law in order to obviate the strength 
of this temptation, but it is only an imperfect right, unlike that 
of necessity, and all attempts to construct a title upon princi- 
ples of convenience can result only in imperfect titles, which 
require the express acknowledgment of other nations to give 
them validity, 



129 



CHAPTER X. 

ON DERIVATIVE TITLE. 

Title by Conquest. — Title by Convention. — Vattel — Martens. — Whea- 
ton. — The Practice of Nations. — United States. — Great Britain. — 
Kent's Commentaries. — Mixed Conventions. — The Fisheries of New. 
foundland. — Treaty of Paris. — Distinction between Rights and Liber- 
ties. — Permanent Servitude. — Negotiations ia 1818.- Mr. Adams' Ar- 
gument. — Lord Bathurst's Letter. — Mr. Adams' Reply. — Convention 
of 1818. 

Derivative title may result from involuntary or voluntary 
cession {traditio.) Involuntary cession takes place when a 
nation vanquished in war abandons its territory to the con- 
queror who has seized it. Voluntary cession, on the other 
hand, is marked by some compact or convention ; its object 
may be either to prevent a war, or to cement a peace. The 
repeated occurrence of such voluntary cessions in later times, 
has led the chief writers on international law to make a dis- 
tinction accordingly between transitory conventions, which 
mark such cessions, and treaties properly so called. 
Vattel, b. xi., ch. xii., § 153, lays it down that, — 
" The compacts which have temporary matters for their 
object are called agreements, conventions, and pactions. 
They are accomplished by one single act, and not by repeated 
acts. These compacts are perfected in their execution once 
for all ; treaties receive a successive execution, whose dura- 
tion equals that of the treaty." 

Martens, § 68, to the same effect observes, — 
" Les traites de cession, de limites, d'echange, et ceux 
meme qui constituent une servitude de droit public, ont la na- 
ture des conventions transitoires ; les traites d'amitie, de 
commerce, de navigation, les alliances egales et inegales, ont 
celle des traites proprement dits {fmdera.) 

•' Les conventions transitoires sont perpetuelles par la na- 
ture de la chose." (§ 1.) 

Mr. Wheaton, part iii., c. 11, follows in the same line : — 
*' General compacts between nations may be divided into 
what are called transitory conventions, and treaties properly 



130 DOCTRINE OF THE UNITED STATES. 

SO called. The first are perpetual in their nature, so that 
being carried into effect, they subsist independent of any 
change in the sovereignty and form of government of the 
contracting parties ; and although their operation may in 
some cases be suspended during war, they revive on the return 
of peace without any express stipulation. Such arc treaties 
of cession, boundary, or exchange of territory, or those which 
create a permanent servitude in favor of one nation within 
the territory of another." 

If we look to the practice of nations, we find that the tri- 
bunals of the United States, equally with those of Great Bri- 
tain, maintain this doctrine. Thus in the case of The Society 
for the Propagation of the Gospel in Foreign Parts v. Town 
of Newhaven, in Wheaton's Reports of Cases adjudged in 
the Supreme Court of the United States, Feb. 1823, vol. viii., 
p. 494, Mr. Justice Washington, in delivering judgment for 
the plaintiffs, said, " But we are not inclined to admit the 
doctrine urged at the bar, that treaties become extinguished, 
ipso facto, by war between the two governments, unless they 
should be revived by an express or implied renewal on the 
return of peace. Whatever may be the latitude of doctrine 
laid down by elementary writers on the law of nations, dealing 
in general terms in relation to this subject, we are satisfied 
that the doctrine contended for is not universally true. There 
may be treaties of such a nature, as to their object and im- 
port, as that war will put an end to them ; but where treaties 
contemplate a permanent arrangement of territorial and other 
national rights, or which, in their terms, are meant to provide 
for the event of an intervening war, it would be against every 
principle of just interpretation to hold them extinguished by 
the event of the war. If such were the law, even the treaty 
of 1783, so far as it fixed our limits, and acknowledged our 
independence, would be gone, and we should have had again 
to struggle for both upon original revolutionary principles. 
Such a construction was never asserted, and would be so 
monstrous as to supersede all reasoning. 

'* We think, therefore, that treaties stipulating for perma- 
nent rights and general arrangements, and professing to aim 
at perpetuity, and to deal with the case of war as well as of 
peace, do not cease on the occurrence of war, but are at most 
only suspended while it lasts ; and unless they are waived by 
the parties, or new and repugnant stipulations are made, they 
revive in their operation at the return of peace ?" 



PERMANEKT PROVISIONS. 131 

In the case of Sutton v. Sutton, 1 Russell and Mylne, p. 
663, which was decided by Sir J. Leach, in the Rolls Court 
in London, in 1830, a question was raised whether by the 
ninth article of the treaty of 1794, between Great Britain 
and the United States, American citizens who held lands in 
Great Britain on Oct. 20, 1795, and their heirs and assigns, 
are at all times to be considered, as far as regards those lands, 
not as aliens, but as native subjects of Great Britain. The 
28th article of the treaty declared that the ten first articles 
should be permanent, but the counsel in support of the objec- 
tion to the title contended, that " it was impossible to suggest 
that the treaty was continuing in force in 1813 ; it necessa- 
rily ceased with the commencement of the war. The 87 G. 
3, c. 97, could not continue in operation a moment longer 
without violating the plainest words of the Act. That the 
word ' permanent' was used, not as synonymous with ' per- 
petual or everlasting,' but in opposition to a period of time 
expressly Hmited." On the other hand, the counsel in sup- 
port of the title maintained that " the treaty contained articles 
of two different descriptions ; some of them being temporary, 
others of perpetual obligation. Of those which were tempo- 
rary, some were to last for a limited period ; such as the 
various regulations concerning trade and navigation ; and 
some were to continue so long as peace subsisted, but being 
inconsistent with a state of war, would necessarily expire 
with the commencement of hostilities. There were other 
stipulations which were to remain in force in all time to come, 
unaffected by the contingency of peace or war. For instance, 
there are clauses for fixing the boundaries of the United 
States. Were the boundaries so fixed to cease to be the 
boundaries, the moment that hostilities broke out ?" 

The Master of the Rolls, in his judgment, said, " The pri- 
vileges of natives being reciprocally given, not only to the 
xtual possessors of lands, but to their heirs and assigns, it is 
a reasonable construction that it was the intention of the 
*reaty, that the operation of the treaty should he permanent^ 
bid not depend upon the continuance of a state of peace." 

" The Act of the 37 G. 3, c. 95, gives full effect to this 
article of the treaty in the strongest and clearest terms; and 
if it be, as I consider it, the true construction of this article, 
that it was to be permanent, and independent of a state of 
peace or war, then the Act of Parliament must be held in the 
24th section, to declare this permanency, and when a subse- 



132 OF CERTAIN TREATIES. 

quent section provides that the act is to continue in force, so 
long only as a state of peace shall subsist, it cannot be con- 
strued to be directly repugnant and opposed to the 24th sec- 
tion, but is to be understood as referrin<j to such provisions of 
Uie Act only as would in their nature depend upon a state c 
peace.** 

The third article, however, of the Treaty of 1794, which 
may be referred to in Martens' Recueil, ii., p. 497, was of a 
mixed character, as it recognised a right of one kind, and 
conceded a liberty of another kind. 

" It is agreed, that the people of the United States shall 
continue to enjoy, unmolested, the right to take fish of every 
kind on the Grand Bank, and on other banks of Newfound- 
land ; also, in the Gulf of St. Lawrence and all other places 
in the sea where the inhabitants of both countries used, at any 
time heretofore, to fish. And also, that the inhabitants of 
the United States shall have liberty to take fish of every kind 
on such part of the coast of Newfoundland as British fisher- 
men shall use, (but not to dry or cure the same on that island) 
and also on the coasts, bays, and creeks of all other of her 
Britannic Majesty's dominions in America; and that the 
American fishermen shall have liberty to dry and cure fish in 
any of the unsettled bays, harbors, and creeks of Nova Scotia, 
Magdalen Islands, and Labrador, so long as the same shall re- 
main unsettled ; but so soon as the same, or either of them, 
shall be settled, it shall not be lawful for the said fishermen 
to dry or cure fish at such settlements without a previous agree- 
ment for that purpose with the inhabitants, proprietors, or pos- 
sessors of the ground." 

That the grant of this liberty to American fishermen to take 
fish on portions of the coast of his Britannic Majesty's do- 
minions, and to dry and cure their fish unconditionally on 
certain districts not yet settled, subject however to conditions 
when such districts should become settled, was a provision of 
a distinct character from the recognition of their right to fish 
in certain seas and gulfs hitherto open to both parties — was to 
be presumed both from the terms of the provisions being dis- 
tinct from each other, and from the nature of the things them- 
selves, as the liberties were to be enjoyed within his Britannic 
Majesty's dominions, the right was to be exercised in the seas 
and gulfs, over which his Britannic Majesty claimed no ex- 
clusive sovereignty. 

The principle established by these two cases seems to be 



MIXED C0NVE^T10^'S. 133 

this,— that where a convention in its terms contemplates a 
permanent arrangement of territorial or other national right, 
the continuance of which would not be inconsistent with a 
state of war, it will not expire with the commencement of 
hostilities, though its operation may in certain cases be sus- 
pended till the return of peace. 

Hence indeed, conventions, by which a right is recognised, 
are no sooner executed than they are completed and perfected. 
If they are valid, they have in their own nature a perpetual 
and irrevocable effect. To use the words of Vattel, "As 
soon as a right is transferred by lawful convention, it no longer 
belongs to the state that has ceded it : the affair is concluded 

o 

and terminated." 

To the same effect Judge Kent, the Blackstone of the 
United States, in his Commentaries upon American law, (vol. 
i., p. 177,) adopts almost word for word the judgment of the 
Supreme Court : — " Where treaties contemplate a permanent 
arrangement of national rights, or which by their terms are 
meant to provide for the event of an intervening war, it would 
be against every principle of just interpretation to hold them 
extinguished by the event of war. They revive at peace, 
unless waived, or new and repugnant stipulations be made." 

Discussions, however, and disputes have not unfrequently 
arisen as to the character of certain conventions, from the 
circumstance that on occasions where rights have been recog- 
nised, liberties or favors have been conceded in other articles 
of the same agreement. 

To this effect Martens (§ 58) observes, " Cette distinction 
entre les conventions transitoires et les traites serait encore 
plus importante, si nombre des traites, et nommement les 
traites de paix, n'etaient pas composes d'articles de Tun et de 
I'autre genre, [mixtcs,] ce qui met dela difficulte dans I'appli- 
cation des principes enonces." 

A striking illustration of this observation of M. Martens 
may be found in the discussions which took place between the 
governments of the United States and Great Britain in respect 
to the fisheries on the Banks of Newfoundland, after the 
Treaty of Ghent. 

By the first article of the treaty signed at Paris in 1783, 
between Great Britain and the United States of America, his 
Britannic Majesty had acknowledged the said United States 
[fourteen in number as specified] to be free, sovereign, and 
independent states. 

7 



134 KECOGNITIONS OF INDEPE^I/EI^Ci:, 

This article then contained the recognition of a right once 
and for all ; and as the main and principal ohject of the 
treaty was the recognition of the independence of the United 
States, this treaty may justly be classed amongst transitory 
conventions, which are completed and perfected as soon as 
executed. 

Another question, however, might oln'iously be raised \n 
case of a war, — whether the words of the article created 
what Martens designates " une servitude de droit public," and 
what Mr. Wheaton speaks of as " a pern7anent servitude in 
favor of one nation within theten-itory of another," which from 
the nature of the thing would be suspended during the war, 
but would revive on the restoration of peace, or whether they 
merely conceded a favor, the duration of which would be sub- 
ject to the continuance of peaceful relations between the two 
states, so that the obligation would cease with the breaking 
out of war. 

In the negotiations which took place in 1818 between the 
two governments [British and Foreign State Papers, 1819-20,] 
Mr. Adams, on the part of the United States, contended that 
the treaty of 1783 was not one of those, *' which, by the 
common understanding and usage of civilized nations, is or 
can be considered as annulled by a subsequent war between 
the same parties. To suppose that it is, would imply the in- 
consistency and absurdity of a sovereign and independent 
state liable to forfeit its right of sovereignty, by the act of 
exercising it in a declaration of war. But the very words of 
the treaty attest, that the sovereignty and independence of 
the United States were not considered or understood as grants 
from his Majesty. They were taken and expressed as ex- 
isting before the treaty was made, and as then only first for- 
mally recognized and acknowledged by Great Britain. 

" Precisely of the same nature were the rights and liberties 
in the fisheries to which I now refer. They were in no re- 
spect grants from the King of Great Britain to the United 
States ; but the acknowledgment of them, as rights and liber- 
ties enjoyed before the separation of the two countries, which 
it was mutually agreed should continue to be enjoyed under 
the new relations which were to subsist between them, con- 
stituted the essence of the article concerning the fisheries. 
The very peculiarity of the stipulation is an evidence that it 
was not, on either side, understood or intended as a grant 
from one sovereign state to another. Had it been so under- 



TREATIES TERMINABLE BY WAR. 135 

stood, neither could the United States have claimed, nor would 
Great Britain have granted gratuitously, any such concession. 
There was nothing either in the state of things or in the dis- 
position of the parties which could have led to such a stipu- 
lation, as on the ground of a grant, without an equivalent by 
Great Britain." 

Lord Bathurst's letter of October 30, 1815, to Mr. Adams, 
contains a full exposition of the doctrine maintained by Great 
Britain. It is worthy of perusal in full, but, as its great 
length precludes its insertion on the present occasion, the pas- 
sages have been selected which bear most closely on the 
question. 

"The Minister of the United States appears, by his letter, 
to be well aware that Great Britain has always considered the 
liberty formerly enjoyed by the United States, of fishing 
within British limits, and using British territories, as derived 
from the third article of the Treaty of 17S3, and from that 
alone ; and that the claim of an independent state to occupy 
and use, at its discretion, any portion of the territory of an- 
other, without compensation or corresponding indulgence, 
cannot rest on any other foundation than conventional stipu- 
lation. It is unnecessary to enquire into the motives which 
might have originally influenced Great Britain in conceding 
such liberties to the United States ; or whether other articles 
of the treaty wherein these liberties are specified, did, or did 
not, in fact afford an equivalent for them ; because all stipu- 
lations profess to be founded on equivalent advantages and 
mutual convenience. If the United States derived from that 
treaty privileges from which other independent nations, not 
admitted by treaty, were excluded, the duration of the privi- 
leges must depend on the duration of the instrument by which 
they were granted ; and, if the war abrogated the treaty, it 
determined the privileges. It has been urged, indeed, on the 
part of the United States, that the treaty of 1783 was of a 
peculiar character ; and that, because it contained a recogni- 
tion of American independence, it could not be abrogated by 
a subsequent war between the parties. To a position of this 
novel nature, Great Britain cannot accede. She knows of 
no exception to the rule, that all treaties are put an end to by 
a subsequent war between the same parties ; she cannot, 
therefore, consent to give to her diplomatic relations with one 
state, a different degree of permanency from that on which 
her connection with all other states depends. Nor can she 



136 IRREVOCABLE RECOGNITIONS. 

consider any one state at liberty to assign to a treaty made 
witii her, such a pecuUarity of character as shall make it, as 
to duration, an exception to all other treaties, in order to found, 
on a peculiarity thus assumed, an irrevocable title to indul- 
gences, which have all the features of temporary concessions.*' 



"/^ is by no means unusual for treaties containing recogni- 
tions and achiowledgments of title, in the nature of perpetual 
obligation, to contain, likewise, grants of privileges liable to re- 
vocation. The Treaty of 1783, like many others, contained 
provisions of different characters, some in their own nature ir- 
revocable, and others of a temporary nature. If it be thence 
inferred, that, because some advantages specified in a treaty 
could not be put an end to by the war, therefore all the other 
advantages were intended to be equally permanent, it must 
first be shown that the advantages themselves are of the same, 
or, at least, of a similar character : for the character of one 
advantage recognised or conceded by treaty, can have no 
connection with the character of another, though conceded 
by the same instrument, unless it arises out of a strict and 
necessary connection between the advantages themselves. 
But what necessary connection can there be between a 
right to indcpsndence, and a liberty to fish within British 
jurisdiction, or to use British territory? Liberties within 
British limits are as capable of being exercised by a dependent, 
as an independent state, and cannot therefore be the necessary 
consequences of independence. 

"The independence of a state is that which cannot be cor- 
rectly said to be granted by a treaty but to be acknowledged 
by one. In the Treaty of 1783, the independence of the 
United States was certainly acknowledged ; but it had been 
before acknowledged, not merely by the consent to make the 
treaty, but by the previous consent to enter into the provision- 
al articles executed November, 1782. The independence 
might have been acknowledged, without either the treaty or 
the provisional articles ; but by whatever mode acknowledged 
the acknowledgment is, in its own nature, irrevocable. A 
power of revoking, or even modifying it, would be destruc- 
tive of the thing itself; and, therefore, all such power is ne- 
cessarily renounced, when the acknowledgment is made. 
The war could not put an end to it, for the reason justly as- 
signed by the American Minister, because a nation cannot 



LIBERTY DIFFERENT FROM RIGHT. 137 

forfeit its sovereignty by the act of exercising it ; and for the 
further reason that Great Britain, when she declared war on 
her part against the United States, gave them by that very 
act a new recognition of their independence. 

" The nature of the hberty to fish within British Hmits, or 
to use British territory, is essentially different from the right 
to independence, in all that may reasonably be supposed to re- 
gard its intended duration. The grant of this liberty has all 
the aspect of a policy temporary and experimental, depend- 
ing upon the use that might be made of it, on the condition 
of the islands and places where it was to be exercised, and 
the more general conveniences or inconveniences, in a mili- 
tary, naval, or commercial point of view, resulting from the 
access of an independent nation to such islands and places. 
When, therefore, Great Britain, admitting the independence 
of the United States, denies their rights to the liberties for 
which they now contend, it is not that she selects from the 
treaty articles or parts of articles, and says, at her own will, 
This stipulation is liable to forfeiture by war, and that is ir- 
revocable ; but the principle of her reasoning is, that such 
distinctions arise out of the provisions themselves, and are 
founded on the very nature of the grants. But the rights ac- 
knowledged by the treaty of 1783 are not only distinguish- 
able from the liberties conceded by the same treaty in the 
foundation upon which they stand, but they are carefully 
distinguished in the treaty of 1783 itself. 

" The undersigned begs to call the attention of the American 
minister to the wording of the 1st and 2nd articles, to which 
he has often referred for the foundation of his arguments. 
In the 1st article, Great Britain acknowledges an independ- 
ence already expressly recognised by other powers of Europe, 
and by herself, in her consent to enter into provisional ar- 
ticles, of Nov. 1782. In the 3rd article Great Britain ac- 
knowledges the right of the United States to take fish on the 
banks of Newfoundland, and other places, from which Great 
Britain had no right to exclude any independent nation. 
But they are to have the liberty to take fish on the coasts of 
his Majesty's dominions in America, and liberty to cure and 
dry them in certain unsettled places within his Majesty's 
territory. If these liberties, thus granted, were to be as per- 
petual and indefeasible as the rights previously recognized, it 
is difficult to conceive that the plenipotentiaries of the United 
States would have admitted a variation of language so adapt- 



138 LIBERTIES DISTINCT FROM RIGHTS. 

ed to produce a different impression, and above all, that they 
should have admitted so strange a restriction of a perpetual 
and indefeasible right, as that with which the article concludes, 
which leaves a right, so practical and so beneficial as this 
is admitted to be, dependent on the will of British subjects, in 
their character of inhabitants, proprietors, or possessors of the 
soil, to prohibit its exercise altogether. 

"It is clearly obvious that the word right is, throughout the 
treaty, used as applicable to what the United States were to 
enjoy in virtue of a recognized independence, and the word 
liberty to what they were to enjoy, as concessions strictly de- 
pendent on the treaty itself." 

Mr. Adams, in his reply to Viscount Castlereagh, of Jan. 22, 
1816, having explicitly "disavowed every pretence of claiming 
for the diplomatic relations between the United States and 
Great Britain a degree of permanency different from that of 
the same relations between either of the parties and all other 
powers," goes on to state, *' The undersigned believes that 
there are many exceptions to the rule by which treaties be- 
tween nations are mutually considered as terminated by the 
intervention of war ; that these exceptions extend to the en- 
gagements contracted, with the understanding that they are 
to operate equally in war and peace, or exclusively during 
war : to all engagements by which the parties superadd the 
sanction of a formal compact to principles dictated by the 
eternal laws of morality and humanity ; and finally to all 
engagements which, according to the expression of Lord 
Bathurst's note, are in the nature of a perpetual obligation. 
To the first and second of these classes may be referred the 
10th article of the treaty of 1794, and all treaties or articles 
of treaties stipulating the abolition of the slave-trade. The 
treaty of peace of 1783 belongs to the third." 

" The reasoning of Lord Bathurst's note seems to confine 
this perpetuity of obligation to recognitions and acknowledg- 
ments of title ; and to consider its perpetual nature as result- 
ing from the subject matter of the contract, and not from the 
engagement of the contractor. Whilst Great Britain leaves 
the United States unmolested in the enjoyment of all the ad- 
vantages, rights, and liberties, stipulated in their behalf in the 
Treaty of 1783, it is immaterial to them whether she founds 
her conduct upon the mere fact that the United States are in 
possession of such rights, or whether she is governed by good 
faith and respect for her own engagements. But if she con- 



TREATY — STIPTJLATIONS. 139 

tests any one of them, it is to her engagements only that the 
United States can appeal as to the rule for settling the ques- 
tion of fight. If this appeal be rejected, it ceases to be a dis- 
cussion of right, and this observation applies as strongly to the 
recognition of independence, and to the boundary line, in the 
Treaty of 1783, as to the fisheries. It is truly observed by 
Lord Bathurst, that in that treaty the independence of the 
United States was not granted, but acknowledged. He adds, 
that it might have been acknovidedged without any treaty, 
and that the acknowledgment, in whatever mode made, 
would have been irrevocable. But the independence of the 
United States was precisely the question upon which a 
previous war between them and Great Britain had been 
waged. Other nations might acknowledge their independ- 
ence without a treaty, because thej^ had no right, or claim of 
right, to contest it : but this acknowledgment, to be binding 
upon Great Britain, could have been made only by treaty, 
because it included the dissolution of one social compact be- 
tween the parties, as well as the formation of another. Peace 
could exist between the two nations only by the mutual 
pledge of faith to the new social relations established between 
them, and hence it was that the stipulations of that treaty 
were in the nature of perpetual obligation, and not liable to be 
forfeited by a subsequent war, or by any declaration of the 
will of either party without the assent of the other." 

Mr. Adams then proceeds to discuss the variation in the 
employment of the terms right and liberty, considering the 
former to import an advantage to be enjoj'ed in a place of 
common jurisdiction, the latter to refer to the same advantage, 
incidentally leading to the borders of a special jurisdiction. 
That the term right was used as applicable to what the 
United States were to enjoy in virtue of a recognised in- 
dependence^ and the word liberty to what they were to enjoy 
as concessions strieth' dependent on the treaty itself, he de- 
clined to admit, as a construction altogether unfounded. 

He further contended, that " the restriction at the close of 
the article was itseif a confirmation of the permanency of every 
part of the article,'' for that, " upon the common and equitable 
rule of constriiction for treaties, the expression of one restric- 
tion implies the exclusion of all others not expressed ; and thus 
the very limitation, which looks forward to the time when 
the unsettled deserts should become inhabited, to modify 
the finjoyment of the same liberty, conformably to the 



140 CONVENTION OF 1818. 

change of circumstances, corroborates the conclusion that 
the whole purport of the compact was pennanent and 
not temporary." 

The documents from which these extracts have been made 
will well repay a perusal of them in full, both from the im- 
portance of the principles which are therein discussed, and 
from the ability with which the discussion was conducted on 
both sides. The result of the negotiations was the con- 
clusion of the convention of October 20, 1818, by which the 
liberty to take and cure fish on certain parts of the British 
American coasts, so long as they remained unsettled was 
secured to the citizens of the United States, in common with 
British subjects ^''for ere?*." 

It appears to have been admitted by both parties to this 
negotiation, that treaties do sometimes contain acknowledg- 
ments in the nature of a perpetual obligation : the point at 
issue between them seems to have been, whether the provi- 
sions of a convention could ever be considered as of a mixed 
character, some of which would be terminable by war, whilst 
others were irrevocable ; and whether the nature of the thing 
acknowledged determined the character of the provision, or 
the engagement of a treaty gave permanence to the obliga- 
tion. It seems to have been implied by the insertion of the 
words " for ever,"' in the first article of the Convention of 
1818, that if the permanent character of the thing recog- 
nised is not beyond dispute, the words of the convention must 
be express, in order to give to the engagements of it the na- 
ture of a perpetual obligation. On the other hand, both par- 
ties admitted that recognitions of territorial title were of 
perpetual obligation; they differed as to the grounds: the 
British commissioner deriving the obligation from the nature 
of the thing recognised, the plenipotentiary of the United 
States from the fact of its having been recognised by a 
convention. 



141 



CHAPTER XL 

NEGOTIATION BETWEEN THE UNITED STATES AND GREAT 
BRITAIN IN 1818. 

Treaty of Ghent, 1814. — Negotiations respecting the Restoration of Fort 
George. — The United States replaced in Possession of the Post at the 
Mouth of the Cohimbia River. — General Negotiations in London, in 
1818, — Proposal on the I'art of the United States.— Convention of 
1818. — No exclusive Claim on either Side. — Western Boundary of the 
United States by the Treaty of 1783.~Treaty of 1794— Sources of 
the Mississippi in 47° 38'. — Convention of 1803, respecting the Boun- 
dary, not ratified. — President Jefferson's Letter. — Cession of Louisiana 
to the United States. — Convention of 1806. — First Allusion to the 
Country west of the Rocky Mountains. — Convention not ratified by 
the United States. — Boundary Line according to the Treaty of Utrecht. 
— Opinion of Mr. Greenhow. — Anderson's History of Commerce. — 
Treaty of Ryswick — Limits of Canada, as surrendered to Great Bri- 
tain. — Difficulty of Boundary Treaties from incorrect Maps. — Treaty 
of 1783. 

The Treaty of Ghent, between Great Britain and the United 
States of America, was signed on the 24th of December 
1814, and it was agreed in the first article, "that all territory, 
places, and possessions whatsoever taken by either party from 
the other during the war, or which may be taken after the 
signing of this treaty, excepting only the islands hereinafter 
mentioned [in the bay of Passamaquoddy,] shall be restored 
without delay." By virtue of this article, Mr. Monroe, the 
Secretary of State at Washington, wrote to Mr. Baker, the 
British charge d'affaires, on July 18, 1815, to inform him 
that measures would be taken by the United States to occupy 
withoutdelay the post on the Columbia river, which a British 
expedition had succeeded in taking possession of during the 
war, as not being within the exception stipulated. [British 
and Foreign State Papers, 1821-22, p. 459.] To this com- 
munication an indecisive reply was made by Mr. Baker, and 
the affair was allowed to rest till 1817, when it appears that 
the United States despatched the Ontario sloop of war to re- 
sume possession of this post, without giving previous notice 

7* 



142 RESTORATION OF FORT GEORGE. 

to Mr. Bagot, the British minister at "Washington. This led 
to an inquiry on the part of Mr. Bagot, relative to the des- 
tination of the Ontario, and the object of her voyage, and to 
a statement from him, that " the post in question had not been 
captured during the late war, but that the Americans had re- 
tired from it under an agreement made with the North-west 
Company, who had purchased their effects, and who had ever 
since retained peaceable possession of the coast." He fur- 
ther observed, that no claim for the restitution of this post 
could be grounded upon the first article of the Treaty of 
Ghent, and that " the territory itself was early taken posses- 
sion of in his Majesty's name, and has been since considered 
as forming a part of his Majesty's dominions." 

The discussion was soon afterwards transferred to London, 
when, in February 1818, Lord Castlereagh intimated his re- 
gret that no notice of the expedition of the Ontario should 
have been given to the British minister at Washington, Great 
Britain having a claim of dominion over the territory in 
question. It was the desire, however, he said, of the British 
Government, that the claim of title to this post should go 
before commissioners for arbitration. Mr. Rush, the Min- 
ister of the United States, was authorised to state that the 
omission to give notice of the Ontario's departure to Mr. 
Bagot, was entirely owing to the accident of the President 
being absent from the seat of government, but that it had 
been concluded from Mr. Baker's communications that no 
authorised English establishment existed at the place, and " as 
they intimated no question whatever of the title of the Unit- 
ed States to the settlement, which existed there before the 
late war, it did not occur that any such question had since 
arisen, which could make it an object of interest to Great 
Britain." 

Mr. Adams, in the course of his subsequent instructions to 
Mr. Rush, in his letter of May 20, 1818, sets forth very 
clearly and fully the pretensions of the United States. " As 
it was not anticipated that any disposition existed in the British 
government to start questions of title with us on the borders 
of the South Sea, we could have no possible motive for reserve 
or concealment with regard to the expedition of the Ontario. 
In suggesting these ideas to Lord Castlereagh, rather in con- 
versation than in any formal manner, it may be proper to 
remark the minuteness of the present interests, either to 
Great Britain or to the L^nited States, involved in this con- 



PRESUMPTION FROM POSSESSION. 143 

cern ; and the unwillingness, for that reason, of this Govern- 
ment, to include it among the objects of serious discussion 
with them. At the same time you might give him to under- 
stand, though not unless in a manner to avoid every thing 
offensive in the suggestion, that from the nature of things, if 
in the course of future events it should ever become an object 
of serious importance to the United States, it can scarcely be 
supposed that Great Britain would find it useful or advisable 
to resist their claim to possession by sj^stematic opposition. 
If the United States leave her in undisturbed enjoyment of 
all her holds upon Europe, Asia, and Africa, with all her 
actual possessions in this hemisphere, we may very fairly 
expect, that she will not think it inconsistent with a very wise 
or friendly ]K)licy, to v/atch with eyes of jealousy and alarm 
every possibility of extension to our natural dominion in 
North America, which she can have no solid interest to pre- 
vent, until all possibility of her preventing it shall have 
vanished." (State Papers, 1821-22, p. 464.) 

Lord Castlereagh in the mean time had admitted to Mr. 
Rush, that in accordance with the principle of statu quo, which 
was the basis of the Treaty of Ghent, the United States had 
a right to be reinstated and to be the party in possession whilst 
treating of the title. In accordance with this view, orders 
were transmitted to the agents of the North-west Company 
at Fort George, and to the commodore of the British naval 
forces in the Pacific, expressly in conformity to the first article 
of the Treaty of Ghent, to restore to the government of the 
United States, through its agent, Mr. Prevost, the settlement 
of Fort George on the Columbia river. A formal surrender of 
the post was, in consequence, made and accepted on the 6th 
of October, 1813; but the North-west Company were still 
allowed to occupy it under the flag of the United States, 
pending the final decision of the right of sovereignty between 
the respective governments. 

Great Britain, in admitting the right of the United States to 
be the party in possession of Fort George pending the discus- 
sion of the title to it, attached the most liberal interpretation 
to the Treaty of Ghent, and certainly gave to the United 
States, in all future discussions, the advantage of the presump- 
tion of law, on the ground of possession, as against Great 
Britain : — " Commodum possidentis in eo est, quod etiamsi 
ejus res non sit, qui possidet, si modo actor non potuerit suara 
esse probare, remanet in suo loco possessio." But, beyond 



144 PROPOSAL OF THE UNITED STATES. 

this, nothing was conceded. Doubtless, in order to oust the 
United States, it would now be necessary for Great Britain to 
make out a perfect and exclusive title, which she does not at- 
tempt to set up, but the re-occupation of the post by the offi- 
cers of the United States, expressly in conformity to the Treaty 
of Ghent, established nothing further than the fact that they 
were in the possession of it before the war broke out. 

In the mean time negotiations were being carried on in 
London for the settlement of various points at issue between 
the two governments — including the fisheries ; the boundary 
line from the Lake of the Woods westwards ; the settlement 
at the Columbia river; the indemnification for slaves carried off 
from the United States ; and the renewal of a treaty of com- 
merce. It would appear from a letter addressed by Messrs. 
Gallatin and Rush to Mr. Adams, in October 20, 1818, that in 
the course of the above negotiations the British commission- 
ers were altogether unwilling to agree to a boundary line, 
unless some arrangement was made with respect to the coun- 
try westward of the Stony Mountains. " This induced us to 
propose an extension of the boundary line [as drawn along the 
49th degree of north latitude, from the Lake of the Woods to 
the Stony Mountains,] due west to the Pacific Ocean. We 
did not assert that the United States had a perfect right to that 
country., hut insisted that their claim was at least good against 
Great Britain, The 49th degree of north latitude had, in 
pursuance of the Treaty of Utrecht, been fixed indefinitely as 
the line between the northern British possessions and those of 
France, including Louisiana, now a part of our territories. 
There was no reason wliy, if the two countries extended their 
claims westward, the same line should not be continued to 
the Pacific Ocean. So far as discovery gave a claim, ours to 
the whole country on the waters of the Columbia River, was 
indisputable. It had derived its name from that of the 
American ship, commanded by Captain Gray, who had first 
discovered and entered its mouth. It was first explored from 
its sources to the ocean by Lewis and Clarke, and before the 
British traders from Canada had reached any of its waters ; 
for it was now ascertained that tiie river Tacoutche-Tesse, 
discovered by Mackenzie, and which he had mistaken for the 
Columbia, was not a branch of that river, but fell into the 
sound called 'the Gulf of Georgia.' The settlement at the 
place called Astoria, was also the first permanent cstablish- 
ruent made in that qunrtcr. The British plenipotentiaries 



CONVENTION OF 1818. 145 

asserted that former voyages, and principally that of Captain 
Cook, gave to Great Britain the rights derived from discovery, 
and they alluded to purchases from the natives south of the 
River Columbia, which they alleged to have been made prior 
to the American Revolution. They did not make any formal 
proposition for a boundary, but intimated that the river itself 
was the most convenient that could be adopted, and that they 
would not agree to any that did not give them the harbour at 
the mouth of the river, in common with the United States." 
[State Papers, 1819-20, p. 169.] 

These negotiations were brought to a close by the Conven- 
tion of October 20, 1818, in which, however, nothing defi- 
nitive was concluded in regard to the settlement on the 
Columbia river. By the third article it is agreed, that any 
such country as may be claimed by either party on the north- 
west coast of America, on the continent of America westward 
of the Stony Mountains, shall, together with its harbours, 
bays, and creeks, and the navigation of all rivers within the 
same, be free and open, for the term of ten years from the 
date and signature of this treaty, to the vessels, citizens, and 
subjects of the two Powers ; it being well understood that 
this agreement is not to be construed to the prejudice of any 
claim which either of the two high contracting parties may 
have to any part of the last-mentioned country, nor shall it 
be taken to affect the claims of any other Power or State to 
any part of the said country — the only object of the two 
high contracting parties in that respect being to prevent dis- 
putes and differences amongst themselves." [Martens' Nou- 
veau Recueil de Traites, iv., p. 576.] 

Thus much, however, may be considered to have been de- 
finitively recognized by the article just cited, that both par- 
ties had claims to territory west of the Stony Mountains, but 
not exclusive claims ; it being implied, by the provision that 
the agreement should not be taken to affect the claims of 
any other Power or State to any part of the said country, 
that other Powers might likewise have claims. 

By the previous article of this treaty, the object of the fra- 
mers of the second article of the Treaty of 1783 was at last 
accomplished. By that article it had been agreed, that the 
western boundary of the United States should be defined by 
a line " drawn from the most north-western point of tiie Lake 
of the Woods on a due west courFC to the River Mississippi ; 
thence by a lin? to be drawn along the middle of the said 



146 EXCLUSIVE CLAIMS ON NEITHER SIDE. 

River Mississippi, until it shall intersect the northernmost part 
of the thirty-first degree of north latitude." At the time, 
then, when Gray crossed the bar of the Columbia river in 
1792, and first entered the estuary of that river, there was 
no question about any title of the United States to territories 
west of the River Mississippi. The boundaries were the 
Atlantic Ocean on the east, and the River Mississippi on the 
west. 

The framers, however, of the second article of the Treaty 
of 1783, were ignorant of the true position of the sources of 
the Mississippi, It was in consequence stipulated by the 
fourth article of the subsequent Treaty of 1794, that a "joint 
survey of the river from one degree below the falls of St. 
Anthony, to the principal source or sources of the said river, 
and of the parts adjacent thereto," should be made ; and if, 
on the result of the survey, it should appear that the river 
could not be intersected by the above-mentioned line, the 
parties were to regulate the boundary line by amicable nego- 
tiation, according to justice and mutual convenience, and in 
conformity to the intent of the Treaty of 1783. This joint 
survey never took effect. In 1798, however, Mr. Thomson, 
the astronomer of the North-west Company determined the 
latitude of the sources of the Mississippi to be in 47° 38', and 
thus it was definitively ascertained, that no line could be drawn 
due west from the north-western point of the Lake of the 
Woods, which is in latitude 49° 37', so as to meet the head- 
waters of the Mississippi. In consequence, by a convention 
signed on the 12th of May 1803, by Mr. Rufus King and 
Lord Hawkesbury, it was agreed that the boundary should be 
a line from the north-west corner of the Lake of the Woods 
by the shortest line, till it touched the River Mississippi [Bri- 
tish and Foreign State Papers, 1819-20, p. 158.] It is to 
tliis treaty that President Jefferson alludes in his letter of 
August 1803, referred to by Mr. Pakenham, in his letter of 
September 12, 1844: — "The boundaries [of Louisiana] 
which I deem not admitting question, are the high lands 
on the western side of the Mississippi, inclosing all its waters, 
[the Missouri of course,] and terminating in the line drawn 
from the north-west point of the Lake of the Woods to the 
nearest source of the Mississippi, as lately settled between 
Great Britain and the United States." This treaty, however, 
was never ratified, most probably in consequence of the ces- 
sion of Louisiana to the United States, by the treaty signed 



SOtJRCES OF THE MISSISSIPPI. 147 

at Paris on the 30th April, 1803 ; as this cession gave to the 
United States the title which France had re-acquired from 
Spain, by the treaty of St. Ildefonso in 1800, to the western 
bank of the Mississippi. In consequence, we find that in a 
convention concluded at London between Messrs. Monroe and 
Pinckney, and the Lords Holland and Auckland, in 1806, it 
was agreed by the fifth article, " that a line drawn due north 
or south [as the case may require,] from the most north- 
western point of the Lake of the Woods, until it shall inter- 
sect the 49th parallel of north latitude, and from the point of 
such intersection due west, along and with the said parallel, 
shall be the dividing line between his Majesty's territories 
and those of the United States, to the westward of the said 
lake, as far as their said respective territories extend in that 
quarter ; and that the said line shall, to that extent, form the 
southern boundaries of his Majesty's said territories, and the 
northern boundary of the said territories of the United States ; 
provided that nothing in the present article shall be construed 
to extend to the north-west coast of America or to the terri- 
tories belonging to or claimed by either party on the continent 
of America to the westward of the Stony Mountains." (Mar- 
tens' Recueil des Traites, viii., p. 694.) 

This was the first notice of any claim on the part of the 
United States to territory west of the Rocky Mountains : it 
may be presumed that the acquisition of the western bank of 
the Mississippi formed the ostensible basis of her claim, as on 
that ground the expedition of Lewis and Clarke had been 
despatched in the preceding year to follow up the Missouri to 
its source, and thence to trace down to the Pacific Ocean the 
most direct and practicable water-communication for the 
purposes of commerce. It may be observed, that the ar- 
rangement contemplated by this fifth article was highly fa- 
vourable to the United States, as their acquired title to 
Louisiana would not strictly have entitled them to any terri- 
tory north of the Mississippi. This convention, however 
was never ratified by the United States, on account of the 
absence of any provisions to restrain the impressment of 
British sailors serving on board of American ships. (Schoell, 
Histoire des Traites de Paix, ch. 40.) 

Mr. Greenhovv, (p. 2S1,) in alluding to the negotiations 
antecedent to this convention, states that Mr. Monroe, on 
the part of the United States, proposed to Lord Harrowby 
the 49th parallel of latitude, upon the grounds that this pa- 



148 COMMIiSIONERS UNDER TREATY OF UTRECHT. 

rallel had been adopted and definitively settled, by commis- 
saries appointed agreeably to the tenth article of the treaty 
concluded at Utrecht in 1713, as the dividing line between 
the French possessions of Western Canada and Louisiana on 
the south, and the British territories of Hudson's Bay on the 
north ; and that this treaty, having been specially confirmed 
in the Treaty of 1763, by which Canada and the part of 
Louisiana east of the Mississippi and Iberville were ceded to 
Great Britain, the remainder of Louisiana continued as before, 
bounded on the north by the 49th parallel." The same fact 
was alleged by the commissioners of the United State.^, in 
their negotiations with Spain in 1805, respecting the western 
boundary of Louisiana. (British and Foreign State Papers, 
1817-18, p. 322.) 

He further goes on to state, that there is every reason to 
believe, that though commissioners were appointed, in ac- 
cordance with the treaty, for the purpose of determining the 
boundaries between the French and British possessions, they 
never executed their task, and that no line was ever definitely 
adopted by the two Governments. 

This opinion of Mr. Greenhow seems to be fully supported 
by the proofs and illustrations annexed in his Appendix, but 
his mode of stating the substance of the tenth article of the 
Treaty of Utrecht is calculated to mislead his readers into 
supposing, that the northern boundary of Louisiana was 
under discussion when that article was signed. On the con- 
trary, the words of the article were as follow : — " But it is 
agreed on both sides, to determine within a year, by commis- 
saries to be forthwith named by each party, the limits which 
are to be fixed between the said Bay of Hudson and the 
places appertaining to the French; which limits both the 
British and French subjects shall be wholly forbid to pass 
over, or thereby go to each other by sea or by land. The 
same commissaries shall also have orders to describe and 
settle in like manner the boundaries between the oi^^er British 
and French colonies in those parts." 

On this article Mr. Anderson, in his History of Commerce, 
published in 1801, vol. iii., p. 50, observes, under the events 
of the year 1713 : — " Although the French King yielded to the 
Queen of Great Britain, to be possessed by her in full right 
for ever, the Bay and Straits of Hudson, and all parts thereof, 
and within the same, then possessed by France ; yet the 
leavinfT the boundaries between Hudson^s Bay and the north 



Hudson's bay boundaries. 149 

parts of Canada, belonging to France, to be determined by 
commissaries within a year, was, in efiect, the same thing as 
giving up the point altogether, it being well known to all 
Europe, that France never permits her commissaries to 
determine matters referred to such, unless it can be done 
with great advantage to her. Those houndaries therefore 
have never yet been settled, although both British and 
French subjects are by that article expressly debarred from 
passing over the same, or merely to go to each other by sea 
or land." 

The object of the tenth article of the Treaty of Utrecht 
was to secure to the Hudson's Bay Company the restoration 
of the forts and other possessions of which they had been de- 
prived at various times by French expeditions from Canada, 
and of which some had been yielded to France by the seventh 
article of the Treaty of Ryswick. By this latter treaty Louis 
XIV. had at last recognised William III. as King of Great 
Britain and Ireland, and William in return had consented that 
the principle of uhi 'possidetis should be the basis of the nego- 
tiations between the two crowns. By the tenth article, how- 
ever, of the Treaty of Utrecht, the French King agreed to 
restore to the Queen (Anne) of Great Britain, " to be pos- 
sessed in full right for ever, the Bay and Straits of Hudson, 
together with all lands, seas, sea coasts, rivers and places 
situate in the said bay and straits, and which belong thereto, 
no tracts of land or sea being excepted, which are at present 
possessed by the subjects of France." The only question 
therefore for commissaries to settle, were the limits of the Bay 
and Straits of Hudson, coastwards, on the side of the French 
province of Canada, as all the country drained by streams 
entering into the Bay and Straits of Hudson were by the 
terms of the treaty recognised to be part of the possessions of 
Great Britain. 

If the coast boundary, therefore, was once understood by 
the parties, the head waters of the streams that empty them- 
selves into the Bay and Straits of Hudson indicate the line 
which at once satisfied the other conditions of the treaty. 
Such a line, if commenced at the eastern extremity of the 
Straits of Hudson, would have swept along, through the 
sources of the streams flowing into the Lake Mistassinnie and 
Abbitibis, the Rainy Lake, in 48° 30', which empties itself by 
the Rainy River into the Lake of the Woods, the Red Lake, 
and Lake Travers. This last lake would have been the ex» 



150 BOUNDARY TREATIES. 

treme southern limit, in about 45° 40', whence the line would 
have wound upward to the north-west, pursuing a serpentine 
course, and resting with its extremity upon the Rocky Moun- 
tains, at the southernmost source of the Saskatchawan River, 
in about the 48th parallel of latitude. Such would have been 
the boundary line between the French possessions and the 
Hudson's Bay district; and so we find that, in the limits of 
Canada, assigned by the Marquis de Vaudreuil himself, when 
he surrendered the province to Sir J. Ambers t, the Red Lake 
is the apex of the province of Canada, or the point of depar- 
ture from which, on the .one side, the line is drawn to Lake 
Superior ; on the other " follows a serpentine course south- 
ward to the river Ouabache, or Wabash, and along it to the 
junction with the Ohio." This fact was insisted upon by 
the British Government in their answer to the ultimatum of 
France, sent in on the 1st of September, 1761 ; and the map, 
which was presented on that occasion by Mr. Stanley, the 
British minister, embodying those limits, was assented to in 
the French Memorial of the 9th of September. (Historical 
Memorial of the Negotiations of France and England from 
March 26th to September 20th, 1761. Published at Paris, 
by authority.) By the fourth article, however, of the 
Treaty of 1763, Canada was ceded in full, with its depen- 
dencies, including the Illinois ;• and the future line of demar- 
cation between the territories of their Britannic and Christian 
Majesties, on the continent of America, was, by the seventh 
article, irrevocably fixed to be drawn through the middle of 
the River Mississippi, jfrom its source to the river Iberville, 
and thence along the middle of the latter river and the Lakes 
Maurepas and Pontchartrain to the sea. Thenceforward the 
French territory in North America was confined to the 
western bank of the Mississippi, and this was the Louisiana 
which was ceded by France to Spain in 1769, by virtue of 
the treaty secretly concluded in 1762, but not promulgated 
till 1765. There would have been no mistake as to the 
boundaries of Louisiana, Canada, and the Hudson's Bay ter- 
ritories, as long as they were defined to be the aggregate of 
the valleys watered by the rivers flowing into the Gulf of 
Mexico, the Gulf of St. Lawrence, and the Bay of Hudson 
respectively. The difficulty in executing the provisions of 
boundary treaties in America, has arisen chiefly from adopt- 
ing the data which incorrect maps have furnished, to which 
there has been nothing in nature corresponding, and from 



LIMITS OP FRENCH POSSESSIONS. 151 

agreeing to certain parallels of latitude, as appearing from 
those maps to form good natural frontiers, but which have 
been found upon actual survey to frustrate the intentions of 
both parties. 

The relative positions of the Lake of the Woods, the 
Red Lake, and the northernmost source of the Mississippi, 
were evidently not understood by the parties to the 2d article 
of the Treaty of 1783, when it was proposed to continue a 
line from the northwestern point of Lake Superior through 
the Long Lake, and thence to the Lake of the Woods, and 
due west to the Mississippi. In order to hit off the sources 
of the Mississippi, which was the undoubted purport of the 
treaty, the line should have been drawn from the western- 
most point of Lake Superior up the river St. Louis, and 
thence it might have been carried due westward to the source 
of the Mississippi in 47^ 38'. No definite substitute was pro- 
posed in the Treaty of 1794, which admitted the uncertain 
character of the proposed frontier ; for even then the country 
had not been surveyed, and as neither of the conventions of 
1803 nor 1806 was ratified by the United States, *nor could the 
respective plenipotentiaries come to any agreement on the 
subject at the negotiation of the Peace at Ghent, the question 
remained unsettled, until it was at last arranged by the pro- 
visions of the 2d article of the Convention of 1818, that the 
boundary line agreed upon in 1806 should be the frontier 
westward as far the Rocky Mountains. 

If this view be correct of the boundary line of the Hud- 
son's Bay territory, as settled by the Treaty of Utrecht, and 
of the western limit of Canada, as expressed upon its sur- 
render to Great Britain, it will be conclusive against the 
opinion that the French possessions ever extended indefi- 
nitely northwestward along the continent of North Ame- 
rica. 

It should be kept in mind, that the Treaty of Utrecht was 
signed in the interval between the grant to Crozat in 1712 
and the charter of Law's Mississippi Company in 1717. By 
the former grant Louisiana had been definitely limited to the 
head- waters of the Mississippi and the Missouri, and before 
the subsequent annexation of the Illinois to the province of 
Louisiana in 1717, all the territory watered by the streams 
emptying themselves into the Bay of Hudson had been ac- 
knowledged by France to be part of the possessions of the 
Crown of England. As then the Hudson's Bay territories 



152 NORTHERN LIMITS OF THE ILLINOIS. 



were implied by that treaty to extend up to the Red Lake ; 
and Lake Travcrs, this would definitely bar the French title | 
further north ; but the declaration of the French authorities 
themselves, on the surrender of Canada, that its boundary j 
rested upon the Red Lake, will still more decisively negative ; 
the assertion that Louisiana, after 1717, extended "to the [ 
most northern limit of the French possessions in North i 
America, and thereby west of Canada and New France," I 
unless it can be shown that the Illinois country extended to ' 
the west of the Red Lake, which was not the fact. This j 
question, however, will be more fully discussed in the next i 
chapter. 



153 



CHAPTER XII. 



ON THE LIMITS OF LOUISIANA. 

Hernando de Soto discovers the Mississippi, in 1542. — 'British Discoveries 
in 1654 and 1670.— French Expeditions.— De la Salle, in 1682.— Set- 
tlement in the Bay of St. Bernard, in 1685.~D'Iberville, in 1698,— 
Charter of Louis XIV. to Crozat, in 1712. — The Illinois annexed, in 
1717, in the Grant to Law's Mississippi Company — The Treaty of 
Paris, in 1763. — Secret Treaty between France and Spain. — Louisiana 
ceded to Spain, in 176'J. — Retroceded to France, in 1800, by the secret 
Treaty of San Ildefonso. — Transferred by Purchase to the United 
States, in 1803. — Discussions with Spain as to the Boundaries of Lou- 
isiana. — Grants by Charter only valid against other Nations upon Prin- 
ciples recognised by the Law of Nations. — Western Boundaries of Lou- 
isiana. — Evidence of Charters against the Grantors. — Conflict of Titles 
between France and England on the Ohio, between France and Spain 
on the Missouri. — Title of Great Britain by Treaties. — Extent of New 
France westwardly. — Escarbot's Histoire de la Nouvelle France. — 
Map of 1757. — JefFerys' History of the French Dominions in Amer- 
ica. — Questionable Authority of Maps. 

The Spaniards are entitled to claim for their countryman 
Hernando de Soto and his followers the merit of having first 
discovered the River Mississippi. About the same time that 
Vasquez de Coronado vv^as despatched to explore the district 
which is supposed to correspond to the modern province of 
Sonora, in search of the great city of Cibola and the rich 
country of Quivira, the Viceroy Mendoza granted a commis- 
sion to Soto for the discovery of Florida, which at that time 
was the general name for the countries on the northern shores 
of the Gulf of Mexico. According to the Spanish accounts, 
Soto and his followers succeeded, in 1542, in marching across 
the continent from Apalache, to the great river (Mississippi,) 
and thence penetrated as far west as the Rio Negro. Soto 
himself, however, died at Guachoya, and his companions, hav- 
ing committed the body of their leader in a hollow tree to the 
river, descended the Mississippi in boats, and after a series of 
conflicts with the natives, succeeded in reaching the Mexican 
Gulf, under the guidance of Luis de Moscoso and Juan de 
Afiasco. Thence they continued their voyage westward 



154 FRENCH EXPEDITIONS. 

along the coast until they arrived at Panuco, which was the 
northernmost part of New Spain, being within a i^cw miles of 
the sea, a little higher up the river than the modern Tampico. 
(Herrera, Decade iv., ch. vii. and x., British and Foreign 
State Papers, 1817-18, p. 427.) 

The Spaniards, however, do not appear to have availed 
themselves of this discovery of the mouth of the Mississippi 
for the purpose of settlement. On the other hand, the north- 
ern branches of the river appear to have been first explored 
by subjects of other powers than Spain, in the latter portion 
of the seventeenth century. Mr. Greenhow (p. 277) has 
inserted an extract from Jefferys' History of the French Do- 
minions in America, published in 1754, to the effect that " the 
Mississippi, the chief of all the rivers of Louisiana, which it 
divides almost into two equal parts, was discovered by Colo- 
nel Wood, who spent almost ten years, or from 1654 to 1664, 
in searching its source, as also by Captain Bolt, in 1670." 
No further particulars are given by Jefferys, but it may be 
observed that both the above persons were British subjects. 

In the year 1678, the French Government determined upon 
an expedition to explore the western parts of New France, 
and to discover, if possible, a road to penetrate to the Spanish 
possessions in Mexico. In consequence, Louis XIV. issued 
letters patent to the Sieur de la Salle, to authorise him to ex- 
ecute this enterprise, which he commenced towards the end 
of the following year. It was not, however, till February 
1682, that he reached the river Colbert or Mississippi, by fol- 
lowing the course of the Illinois River. His voyage down the 
Mississippi was accomplished by the 7th of April following, 
and on the 9th, La Salle took formal possession, in the name 
of the French monarch, " of the country of Louisiana, from 
the mouth of the great river St. Louis, otherwise called Ohio, 
on the eastern side, and also above the River Colbert or Mis- 
sissippi, and the rivers which discharge themselves into it, 
from its source in the country of the Kious or Nadiouessious, 
as far as its mouth at the sea, or Gulf of Mexico ;" and " up- 
on the assurance which they had received from all the natives 
through whose country they had passed, that they were the 
first Europeans who had descended or ascended the said river 
Colbert, they hereby protested against all those who may in 
future undertake to invade any or all of these countries, peo- 
ple, or lands above described, to the prejudice of the right of 
his Majesty, acquired by the consent of the nations herein 
named." 



crozat's grant. 165 

The proc^s-verbal drawn up on this occasion, of which the 
above is an extract, which is preserved in the archives of the 
Department of the Marine at Paris, was first published by Mr. 
Jared Sparks of Boston, the well-known author of the Life of 
Washington, and may be found most readily in Mr. Falconer's 
able treatise on the discovery of the Mississippi. La Salle, on his 
return to France, obtained authority to form a colony near the 
mouth of the Mississippi, but in his voyage outwards he miscal- 
culated his course, and reached the coast far to the westward of 
that river. Here indeed, in 1685, he established a settlement in 
the Bay of St. Bernard, called by him the Bay of St. Louis, 
which is supposed by some to have been Matagorda Bay, by 
others to have been the Bay of Espiritu Santo. This colony 
met with great disasters ; but the French Government did not 
abandon its object, and in 1698 we find that the illustrious 
Canadian d'Iberville entered the Mississippi, and established 
a settlement at about one hundred leagues from its mouth. 
Before 1710, many French settlements had been made on the 
banks of the great river, but it was not until 1712 that a royal 
charter was granted by the French King to Antoine Crozat, 
which is the earliest document relied upon to establish the 
limits of Louisiana, and which Mr. Greenhow has inserted in 
his work, (p. 277.) 

" Nous avons par ces presentes, signes de notre main, eta- 
bli, et etablissons ledit Sieur Crozat, pour faire seul le com- 
merce dans toutes les terres par nous possedees, et bornces 
par le Nouveau Mexique, et par celles des Anglais de la Caro- 
line, tous les etablissemens, forts, havres, rivieres, et princi- 
palement le port et havre de I'isle Dauphine, appellee autrefois 
de Massacre, le fleuve St. Louis, autrefois appellee Mississippy, 
depuis le bord de la mer jusqu'aux Illinois, ensemble les rivi- 
eres St. PhiHppe, autrefois appellee des Missourys, et St. 
Hierosme, autrefois appellee Ouabache, avec tous les pays, 
contrees, lacs dans les terres, et les rivieres qui tombent di- 
rectement ou indirectement dans cette partie du deuve St. 
Louis. Voulons que les dites terres, contrees, fleuves, rivi- 
eres et isles, soient et demeurent compris sous le nom du 
gouvernement de la Louisiane, qui sera dependant du gou- 
vernement general de la Nouvelle France, auquel il demeurera 
subordonne ; et voulons en outre que toutes les terres que nous 
possedons, depuis les Illinois, soient reunis, en tant que besoin 
est, au gouvernement general de la Nouvelle France, et en 
fassent partie : nous reservant neanmoins d'augmenter, si 



166 

nous le jugeons a-propos, I'etendue du gouvernement du dlt 
pays de Loulsiane.^^ 

liOuisiana, it will be thus seen, according to this authorita- 
tive document of the French crown, was the country water- 
ed by the Mississippi, and its tributary streams from the sea- 
shore to the IlUnois : such was the limitation aflixed to the 
province by the French themselves ; and, by the same pub- 
lic instrument, all the rest of the French possessions were 
united under the government of New France. It is true that 
the Illinois was subsequently annexed to Louisiana by a royal 
decree in 1717, after Crozat had relinquished his charter, and 
the whole region was granted to Law's Mississippi Company ; 
but the Illinois were still spoken of as the Illinois, and the 
district was not merged in Louisiana, though it was annexed 
to that province, to give the company access to Canada, in 
which the monopoly of the beaver-trade had been granted to 
them. It has been already observed, that the limits of the 
Hudson's Bay territories and French Canada were settled by 
the peace of Utrecht, in 1713 : one great object of that treaty 
was to provide against the commercial disputes of the subjects 
of the two crowns, which had led to a series of conflicts on 
the shores of Hudson's Bay ; it was in furtherance of this ob- 
ject that the fur-trade of Canada was now diverted from the 
St. Lawrence to the Mississippi, by this grant of the monopoly 
of the beaver-trade to the Compagnie d'Occident, and the an- 
nexation of the Illinois country to Louisiana. 

Upon the surrender of Canada to the British arms, consid- 
erable discussion arose as to the respective limits of the pro- 
vinces of Canada and Louisiana. The British Government 
insisted, as already stated, p. 150, on a line which would take 
in the river Ouabache, as far as its junction with the Ohio ; 
and from thence along the Ohio to the Mississippi, the country 
to the south of the Ohio being at this time either British pos- 
sessions, as part of Virginia, or occupied by Indian tribes. In 
the course of these negotiations, the Marquis de Vaudreuil, 
who signed the surrender, published his own account of what 
passed between Sir J. Amherst and himself, of which he con- 
sidered the English account to be incorrect. " On the officer 
showing me a map which he had in his hand, I told him the 
limits were not just, and verbally mentioned others, extend- 
ing Louisiana on one side to the carrying-place of the Miamis, 
which is the height of the lands whose rivers run in the Oua- 
bache ; and on the other to the head of the river of the lUi- 



VALIDITY OF CHARTERS. 157 

nois" [Annual Register, 1761, p. 268.] Even thus, then, 
all to the north of the Illinois was admitted to be Canada. 
However, the French Government, in its memorial of the 9th 
September, 1761, " agreed to cede Canada in the most am- 
ple manner, and to admit the line on which England rested 
her demand, as, without doubt, the most extensive bound 
which can be given to the cession." In accordance with this 
we find that, by the seventh article of the Treaty of Paris, 
the French possessions v/ere declared to be thenceforth limit- 
ed by the mid-channel of the Mississippi, from its source to the 
River Iberville. 

The Treaty of Paris, however, has not furnished the only 
occasion upon which intricate discussions have arisen re- 
specting the limits of Louisiana. By a secret treaty with 
Spain, made in 1762, but not signed till 1764, France ceded 
to her all the country known under the name of Louisiana. 
This transfer, however, was not promulgated till 1765, two 
years after the Treaty of Paris had been signed by France, 
Spain, and Great Britain ; nor did the Spaniards obtain pos- 
session of the country till 1769. From that time Spain re- 
tained it till 1800, when she retroceded it to France by the 
secret Treaty of San Ildefonso, in exchange for an augmen- 
tation of the territories of the Duke of Parma in Italy. 
France, having thus been reinstated in possession of her an- 
cient province, found she had unexpectedly given alarm and 
umbrage to the United States of America, and, in order to 
detach them from their disposition to unite with Great Britain, 
ceded it in full to the United States, in 1803, for the sum of 
sixty thousand francs. This led to a protracted negotiation 
between the United States and Spain, as to the limits of Lou- 
isiana, on the side both of Florida and Mexico respectively ; 
which, though commenced in 1805, was not concluded till 
1818. The claims of the two states are discussed in full, 
in a correspondence which may be found in the British and 
Foreign State Papers for 1817-18, and 1819-20. 

The United States, in the course of these discussions, in- 
sisted upon the limits marked out in the letters patent which 
Louis XIV. had granted, to Crozat, on the authority of the 
discovery inade, and of the possession taken, by Father Hen- 
nepin in 1680, and by La Salle in 1682. Thus the validity 
of the title conveyed by the letters patent was sought to be 
grounded by the United States upon principles recognised by 
the law of nations. Charters, by their own intrinsic force, 



158 WESTERN LIMITS OF LOUISIAIVA. 

can only bind those who arc subject to the authority from 
which they emanate : against the subjects of other states they 
can only avail on the supposition that the title ot" the grantor 
is valid by the law of nations. Thus the charter given by 
Charles II. to the Hudson's Bay Company, granted to them, 
hy virtue of the discoveries made in those parts, all the lands, 
&c., within the entrance of the straits commonly called Hud- 
son's Straits, " which are not now actually possessed by any 
of our subjects, or hy the subjects of any other Christian Prince 
or State ;" and thus we find in the negotiations antecedent to 
the Treaty of Utrecht, it was expressly urged in support of 
the British title to the territories of Hudson's Bay, '• that 
Mons. Frontenac, then Governor of Canada, did not complain 
of any pretended injury done to France by the said Compa- 
ny's settling a trade and building of forts at the bottom of 
Hudson's Bay, nor made pretensions to any right of France 
to that bay, till long after that time." [Anderson's History of 
Commerce, a. d. 1670, vol. ii., p. 516.] In other words, the 
title which this charter created was good against other sub- 
jects of the British Crown, by virtue of the charter itself; but 
its validity against other nations rested on the principle that 
the country was discovered by British subjects, and, at the 
time of their settlement, was not occupied by the subjects of 
any other Christian prince or state ; and in respect to any 
special claim on the part of France, the non-interference of 
the French governor was successfully urged against that 
Power as conclusive of her acquiescence. 

That the province of Louisiana did not at any time extend 
further north than the source of the Mississippi, either if 
we regard the evidence of public instruments in the form of 
charters and treaties, or of historical facts, is most assuredly 
beyond the reach of argument. What, however, were the 
western limits of the province, has not been so authoritatively 
determined. Mr. Greenhow, (p. 2S3,) after examining this 
question, concludes thus : — " In the absence of more direct 
light on the subject from history, we are forced to regard the 
boundaries indicated by nature — namely, the highlands sepa- 
rating the waters of the Mississippi from those flowing into 
the Pacific or Californian gulf — as the true western hoimda.' 
ries of the Louisiana ceded by France to Spain in 1762, and 
retroceded to France in 1800, and transferred to the United 
States by France in 1803 : but then it must also be admitted, 
for the same as well as for another and stronger reason, that 



CONFLICT OF TITLES. 159 

the British possessions further north were bounded on the 
coast by the same chain of highlands; for the charter of the 
Hudson's Bay Company, on which the right to those posses- 
sions was founded and maintained, expressly included only 
the countries traversed by the streams emptying themselves 
into Hudson's Bay." 

Charters may certainly be appealed to as evidence against 
the parties which have granted them, that on their own ad- 
mission they do not extend their claim beyond the limits of 
them, and Mr. Greenhow is perfectly justified in confining 
the limits of Rupert's Land, for such seems to have been the 
name recognised in the charter, to the plantation in Hudson's 
Bay, and the countries traversed by the streams emptying 
themselves into the Bay ; but the right to those possessions, 
as against France, was not founded upon the charter, but 
generally upon recognised principles of international law, and 
especially upon the Treaty of Utrecht. So in respect to the 
northern limit of Louisiana, Crozat's grant, or the grant to 
Law's Mississippi Company, might be alleged against France, 
to show that its limits did not extend further north, on the 
right bank of the Mississippi, than the Illinois. On the other 
hand, the Treaty of Paris might be appealed to, in order to 
show against Great Britain, that it did extend on the right 
bank of the Mississippi as far north as the sources of that 
river. Again, in respect to the western boundary of Louis- 
iana, Crozat's grant might be cited against France, to show 
that the province of Louisiana did not extend further west- 
ward than the confines of New Mexico. What, however, was 
the boundary of New Mexico, does not seem to have been 
determined by any treaty between France and Spain. France 
seems, indeed, from the words of Crozat's grant, to have con- 
sidered herself exclusively entitled to the Missouri river on 
the right bank, and to the Ohio on the left. The claims, 
however, of Great Britain, clashed with her on the banks of 
the Ohio, as remarked by Mr. Calhoun in his letter to Mr. 
Packenham of Sept. 3, 1844. In an analogous manner the 
Spanish title conflicted with the French title on the banks of 
the Missouri ; for we find that, in the negotiations antecedent 
to the Treaty of Washington, in 1819, the Spanish commis- 
sioner maintained, that after Santa Fe, the capital of New 
Mexico, was built, Spain considered all the territory lying to 
the east and north of New Mexico, so far as the Mississippi 
and Missouri, to be her property. [British and Foreign State 



160 JEFPEHYS* HISTOKY. 

Papers, 1817-18, p. 438.] The United States, indeed, on 
succeeding to the French title, decHned to admit that the 
Spanish frontier ever extended so far to the north-east as was 
alleged ; on the other hand, the letter of President Jefferson, 
of August 1803, shows that they considered their own claims 
to be limited by "the high lands on the western side of the 
Mississippi, enclosing all its waters, [the Missouri of course."] 

By the Treaty of Utrecht, the British possessions to the 
north-west of Canada were acknowledged to extend to the 
head-waters of the rivers emptying themselves into the bay of 
Hudson : by the Treaty of Paris, they were united to the Brit- 
ish possessions on the Atlantic by the cession of Canada and 
all her dependencies ; and France contracted her dominions 
within the right bank of the Mississippi. That France did 
not retain any territory after this treaty to the north-west of 
the sources of the Mississippi, will be obvious, when it is kept 
in mind that the sources of the Mississippi are in 47° 35', 
whilst the sources of the Red River, which flows through Lake 
Winnipeg, and ultimately finds its way by the Nelson River 
into the bay of Hudson, are in Lake Travers, in about 45° 40'. 

Some writers are disposed to consider that the limits of 
New France extended westvvardly across the entire continent 
to the Pacific Ocean, but no authoritative document has been 
cited to show that the French Crown ever claimed such an 
extent of unknown territory, or that its claim was ever ad- 
mitted. Escarbot's description, in 1617, of New France, 
which, however, is of no authority, embraces within its limits 
almost the entire continent of North America, as may be seen 
from the extract from his " Histoire de la Nouvelle France," 
which M. Duflot de Mofras gives: "Ainsi nostre Nouvelle 
France a pour limites du cote d'ouest les terres jusqu'a la mer 
dite Pacifique en deca du tropique du Cancer ; au midi, les 
cotes de la mer Atlantique du cote do Cube et de I'lsle Hes- 
pagnole ; au levant, la mer du Nord qui baigne la Nouvelle 
France ; et au septentrion, cette terre qui est dite inconnue, 
vers lamer glacce jusqu'au pole arctique." 

The same author cites a map of the year 1757, as confirma- 
tory of this view, in which a great river is exhibited in 45°, on 
the north-west coast of America, the direction of which is 
exactly that of the Columbia ; but Mr. Grecnhow, in the new 
edition of his work, p. 159, states, that this map was drawn 
and presented by the French commissaries appointed under 
the Treatv of Aix-la-Chapelle in 1748, to expose the extrava- 



AUTHORITY OF MAPS. 161 

gant pretensions of the British in North America, and that it does 
not contain the word Canada^ or Nouvelle France, or any other 
sign of French dominion, the whole division of the continent, 
between 48° and 31° north latitude, being represented by- 
strong lines and express notes, as included in the limits of the 
British provinces ; nor does it show any large river falling in- 
to the Pacific north of the peninsula of California, nor any 
river entering that ocean north of 36°. A map perhaps bet- 
ter authenticated than this may be referred to in the History 
of the French Dominions in America, by Jefferys, the geo- 
grapher to the King of England, in 1760, which does not, in- 
deed, extend New France to the Pacific : on the contrary, 
whilst it exhibits the River of the West flowing in a course 
not unlike that of the Columbia, it does not include the Paci- 
fic Ocean at all in its limits, but leaves the west coast of the 
continent in its real obscurity. 

Maps, however, are but pictorial representations of suppos- 
ed territorial limits, the evidence of which must be sought for 
elsewhere. There may be cases, it is true, where maps may 
be evidence ; when, for instance, it has been specially provid- 
ed that a particular map, such as Melish's Map of North 
America, shall be the basis of a convention : but it is to be re- 
gretted that maps of unsurveyed districts should ever have 
been introduced into diplomatic discussions, where limits con- 
formable to convenient physical outlines, such as headlands 
or water-courses, are really sought for, and are understood to 
be the subject of negotiation. The pictorial features of a 
country, which, in such cases, have been frequently assumed 
as the basis of the negotiation, have not unusually caused 
greater embarrassment to both the parties in the subsequent 
attempt to reconcile them with the natural features, than the 
original question in dispute, to which they were supposed to 
have furnished a solution. That the name of Nouvelle France 
should have been applied by French authors and in French maps 
to the country as far as the shores of the Pacific Ocean, was 
as much to be expected as that the name of California should 
have been extended by the Spaniards to the entire north-west 
coast of America, which we know to have been the fact, from 
the negotiations in the Nootka Sound controversy. 



162 



CHAPTER XIII. 



TREATY OF WASHINGTON. 

The Treaty of San Ildefonso. — Ineffectual Negotiations between Spain 
and the United States, in 1805, respecting the Boundary of Louisiana. 
— Resumed in ]8l7. — M. Kerlet's Memoir cited by Spain, Crozat's 
Charter by the United States, as Evidence. — Spain proposes the Mis- 
souri as the mutual Boundary. — The United States propose to cross 
the Rocky Mountains, and draw the Line from the Snow Mountains 
along 41° to tlie Pacific. — Negotiations broken off. — Spain proposes 
the Columbia River as the Frontier. — Offers the Parallel of 41° to the 
Multnomah, and along that River to the Sea. — Error in Melish's Map. 
— The United States propose the Parallel of 41° to the Pacific. — Spain 
proposes the Parallel of 42° to the Multnomah, and along that River to 
43°, thence to the Pacific— The 42° Parallel adopted.— Source of the 
Multnomah or Willamette River, in about 44°. — Wilkes' exploring Ex- 
pedition — Third Article of the Treaty. — The asserted Rights of Spain 
to the Californias. — Her Title by Discovery. — The United States de. 
cline to discuss them. — The asserted Rights of the United States to the 
Valley of the Mississippi. — Mr. Greenhow's Remarks. — The Spanish 
Commissioner declines to negotiate. — Design of the President of the 
United States. — Question of Rights abandoned. — Object of the Spanish 
Concessions. — Santa Fe. — Ultimate Agreement — Review of the Claims 
of the two Parties. — Principles of international Law advanced by the 
United States. — Possession of the Sea-coast entitles to Possession of the 
interior Country. — Vattel. — Inconsistency of the Diplomatists of the 
United States. — Treaty of Paris. — Natural Boundary of conterminous 
Settlements, the Mid-distance. — Vattel. — Wheaton. — Acquisition of 
Title from Natives barred by first Settlers against other European Pow- 
ers. — Right of Pre-emption. 

In the same year in which the Convention of 1818 was con- 
cluded at London between the United States and Great Bri- 
tain, negotiations were being carried on at Washington be- 
tween Spain and the United States, with the view of deter- 
mining the effects of the Treaty of 1803, whereby Louisiana 
had been ceded by France to the latter power. It had been 
stipulated in the treaty of San Ildefonso in 1800, that Spain 
should retrocede " the colony or province of Louisiana, with 
the same extent which it now has in the hands of Spain, and 
which it had when France possessed it, and such as it ought 
to be according to the treaties subsequently made between 
Spain and other powers." (British and Foreign State Papers, 



SPAIN AND THE UNITED STATES. 163 

1817-18, p. 267-9.) The Treaty of 1803 in its turn ceded 
Louisiana to the United States, '* in the name of the French 
repubHc, for ever and in full sovereignty, with all its rights and 
appurtenances, as fully and in the same manner as they have 
been acquired by the French republic, in virtue of the above- 
mentioned treaty with his Catholic Majesty." It thus became 
requisite to determine the limits of this new acquisition of the 
United States, both on the side of the Fioridas, and on that of 
New Spain. An examination of the discussion regarding the 
eastern boundary towards the Fioridas is unnecessary on the 
pre^sent occasion. The question respecting the western limit 
was, perhaps, the more difficult to settle, from the circum- 
stance that Texas was claimed by Spain as a province of 
New Spain, whilst the United States insisted that it was a por- 
tion of Louisiana : whilst Spain contended that she had only 
ceded the Spanish province of Louisiana, the United States 
maintained that she had retroceded the French colony, Spain 
thereupon proposed a line which, " beginning at the Gulf of 
Mexico between the River Carecut or Cascasiu, and the Ar- 
menia or Marmentoa, should go to the north, passing between 
Adaes and Natchitoches, until it cuts the Red River," on the 
ground that the Arroyo-Hondo, which is midway between 
Natchitoches and Adaes, had been, in fact, considered to be 
the boundary in 1763. The United States on the other hand, 
insisted on the Rio Bravo del Norte as the western frontier, 
on the ground that the settlement of La Salle in the Bay of 
St. Bernard (Matagorda) carried with it a right to the territory 
as far as the Rio Bravo. Beyond the Red River Spain pro- 
posed that the boundary should be determined by commission- 
ers, after a survey of the territory, then but little known, and 
a reference to documents and dates, ''which might furnish the 
necessary light to both governments upon limits which had 
never been fixed or determined with exactness." (State Pa- 
pers, 1817-18, p. 321.) Such was the proposal made by Don 
Pedro Cevallos on the part of Spain, on April 9th, 1805. 
Messrs. Pinckney and Moore, in reply, proposed a compromise 
in connection with the western frontier, that a line along the 
River Colorado, from its mouth to its source, and from thence 
to the northern limits of Louisiana, should be the boundary ; 
but the Spanish government decHned to accept their propo- 
sal, and the negotiations were not resumed till the year 1817. 
Spain had, in the mean time, during the captivity of the 
Spanish monarch in France, been unexpectedly deprived of 



164 PROPOSED BOUNDARY. 

the greater part of West Florida, in 1810, by the United 
States, without any declaration 8f war, or stipulation of peace, 
which could seem to authorise it. On re-opening the nego- 
tiation in 1817, the Spanish Government, having waived all 
demands on this head, proposed to cede the two Floridas to 
the United States in exchange for the territory which lies 
between the River Mississippi and the well-known limit which 
now separates, and has separated Louisiana, when France 
possessed it, before the year 1764, and even before the death 
of King Charles II. of Spain, from the Spanish province of 
Texas : so that the Mississippi might be the only boundary 
of the dominions of his Catholic Majesty and of those of the 
United States. (State Papers, 1817-1818, p. 356.) 

In the course of the subsequent negotiations, the Spanish 
commissioner, Don Luis de Onis, in a letter of the 12th of 
March 1818, refused to admit the authority of the grant of 
Louis XIV. to Crozat as evidence of the limits of Louisiana, 
and referred to the memoir drawn up by M. Kerlet, for many 
years governor of the province before it was ceded to Spain 
by the Treaty of 1763, containing a description of its proper 
extent and limits. This memoir had been delivered by the 
Due de Choiseul, minister of France, to the Spanish ambas- 
sador at Paris, as a supplement to the Act of Cession of Lou- 
isiana. (State Papers, 1817-18, p. 437.) On the other 
hand, the Secretary of State, on the part of the United States, 
maintained that *' the only boundaries ever acknowledged by 
France, before the cession to Spain in Nov. 3, 1762, were 
those marked out in the grant from Louis XIV. to Crozat." 
She always claimed the territory which Spain called Texas, 
as being within the limits, and forming part of Louisiana, 
" which in that grant is declared to be bounded westward by 
New Mexico, eastward by Carolina, and extending inward to 
the Illinois, and to the sources of the Mississippi, and of its 
principal branches." (State Papers, 1817-18, p. 470.) 

These discussions were suspended for a short time, in con- 
sequence of difficulties between the two governments re- 
specting the Seminole Indians in Florida ; but on the 24th of 
October Don Luis d'Onis proposed, that " to avoid all causes 
of dispute in future, the limits of the respective possessions of 
both governments to the west of the Mississippi shall be de. 
signated by a line beginning on the Gulf of Mexico, between 
the rivers Marmentoa and Cascasiu, following the Arroyo- 
Hondo, between Adaes and Natchitoches, crossing the Rio 



THE COLUMBIA RIVER. 165 

Roxo, or Red River, at 32° of latitude and 9>° of longitude, 
from London, according to Melish's map, and thence running 
directly north, crossing the Arkansas, the White, and the 
Osage Rivers, till it strikes the Missouri, and then following 
the middle of that river to its source, so that the territory on 
the right bank of the said river will belong to Spain, and that 
on the left bank to the United States. The navigation of 
the Mississippi and Marmentoa shall remain free to the sub- 
jects of both parties." (State Papers, 1818-19, p. 276.) 

No proposal had as yet been advanced by either party to 
carry the boundary line across the Rocky Mountains till Oc- 
tober 31, 1818, when Mr. Adams offered, as the ultimatum of 
the United States, a line from the mouth of the River Sabine, 
following its course to 32° N. L., Ihence due north to the 
Rio Roxo, or Red River, following the course of that river to 
its source, touching the chain of the Snow Mountains in lati- 
tude 37° 25' north, thence to the summit, and following the 
chain of the same to 41°, thence following the same parallel 
to the South Sea." The Spanish commissioner, in his reply, 
undertook to admit the River Sabine instead of the Mar- 
mentoa, on condition " that the line proposed by Mr. Adams 
should run due north from the point where it crosses the Rio 
Roxo till it strikes the Missouri, and thence along the middle 
of the latter to its source ;" but in regard to the extension of 
the line beyond the Missouri, along the Spanish possessions to 
the Pacific^ he declared himself to be totally unprepared by 
his instructions to discuss such a proposal. The negotiations 
were in consequence broken off. Subsequently, the Spanish 
commissioner, having received fresh instructions from his go- 
vernment in a letter of June 16, 1819, proposed to draw the 
western boundary line between the United States and the 
Spanish territories from the source of the Missouri to the Co- 
lumbia River, and along the course of the latter to the Pacific, 
which Mr. Adams, on the part of the United States, rejected 
as inadmissible. Don Luis d'Onis thereupon, having ex- 
pressly waived all questions as to the right of either power to 
the territory in dispute, and also as to the limits of Louisiana, 
proposed that the boundary line, as suggested by Mr. Adams, 
should follow the Sabine river to its source, thence by the 
94th degree of longitude to the Red River of Natchitoches, 
and along the same to the 95th degree ; and crossing it at that 
point, should run by a line due north to the Arkansas, and 

8'* 



166 THE MULTNOMAH RIVER. 

along it to its source, thence by a line due west till it strikes 
the source of the River St. Ciementc or Multnomah, in lati- 
tude 41°, and along that river to the Pacitic Ocean: the whole 
agreeably to Melish's mup. This is another very remarkable 
instance of the danger of referring even to the best maps, 
when territorial limits are to be regulated by the physical fea- 
tures of a country. There must have been a monstrous error 
in Melish's map, which the Spanish commissioner had before 
him, if such a line could have been drawn upon it from the 
source of the Arkansas due west to the source of the Mult- 
nomah, the modern Willamette River. Mr. Adams, in reply, 
proposed a slightly modified line " to the source of the Ar- 
kansas in 41°, and thence due west to the Pacific along the 
parallel of 41° according to Melish's map up to 1818 ; but if 
the source of the Arkansas should fall south or north of 41°, 
then the line should be drawn due north or south from its 
source to the 41st parallel, and thence due west to the sea." 
This would have been an intelligible line. Don Luis d'Onis 
then communicated a project of a further modified line from 
the 100th parallel of longitude west of Greenwich along the 
middle of the Arkansas to the 42d parallel ; " thence a line 
shall be drawn westward, by the same parallel of latitude, to 
the source of the River San Clemente, or Multnomah, fol- 
lowing the course of that river to the 43° of latitude, and 
thence by a line due west to the Pacific Ocean." Another 
counter project was proposed by Mr. Adams on the 13lh of 
February, and ultimately it was agreed between the parties to 
admit the parallel of 42° from the source of the Arkansas 
westward to the Pacific Ocean, with the proviso that if the 
source of the Arkansas should be north or south of 42°, the 
line should bo drawn from it south or north to the 42d parallel. 
It was fortunate tiiat this proviso was ado[)ted, for actual sur- 
veys have since determined the source of the Arkansas to be 
at the foot of the Sierra Verde, in about 40° 45' north latitude. 
On the other hand, as an illustration of the lamentable want 
of information on the part of the Spanish commissioner in 
respect to the boundary line which he proposed to be drawn, 
first of all along the parallel of 41° due west to the source of 
the Multnomah, and secondly along the parallel of 42° due 
west to the same river, it may be observed, that the source of 
t!)is river is ascertained to be very little further south than 
the 44lh parallel of latitude, as may be seen in the excellent 



THE CALIFORNIAS. 167 

American map attached to Commander Wilkes' Exploring 
Expedition, though even so late as in Mitchell's map for 163 i 
it is placed in about 42°. 

The Treaty of Washington, or the Floridas, was thus at 
last concluded on the 22d February, 1819, and by the third 
article, after specifying the boundary line, as above described, 
between the two countries west of the Mississippi, it con- 
cludes thus ; " The two high contracting parties agree to cede 
and renounce all their rights, claims, and pretensions to the 
territories described by the said line ; that is to say, the United 
States hereby cede to his Catholic Majesty, and renounce for 
ever, all their rights, claims, and pretensions to the territories 
lying west and south of the above described line ; and in like 
manner his Catholic Majesty cedes to the United States all 
his rights, claims, and pretensions to any territories east and 
north of the said line, and for himself, his heirs and succes- 
sors, renounces all claim to the said territories for ever.'' (Mar- 
tens' Nouveau Recueil des Traites, v., p. 333.) 

It will be observed from the words of the above article, 
that the nature of the rights reciprocally ceded are in no 
manner specified. It thus becomes necessary to look to the 
antecedent negotiations to determine this question. In the 
first communication from the Chevalier d'Onis, on January 
5, 1818, in respect to the western boundary of Louisiana, we 
find him assert that " the right and dominion of the Crown 
of Spain to the north-west coast of America, as high up as 
the Californias, is not less certain and indisputable (than her 
claim to West Florida.) the Spaniards having explored as far 
as the 47th degree in the expedition under Juan de Fuca in 
1592, and in that of Admiral Fonte to the 55th degree in 
1640. 

"The dominion of Spain in these vast regions being thus 
established, and her rights of discovery, conquest, and pos- 
session, being never disputed, she could scarcely possess a 
property founded on more respectable principles, whether of 
the law of nations, of public law, or any others which servo 
as a basis to such acquisitions as all the independent king- 
doms and states of the earth consist of." (State Papers, 
1817-18, p. 427.) 

Mr. Adams, in his reply of January 16, 1813, stated that 
**the President of the United States considered it would bo 
an unprofitable waste of time to enter again at large upon 
topics of controversy, which were at that time [1805] so 



1C8 NEGOTIATION'S BROKEN OFF. 

thoroughly debated, and upon which he perceives nothing in 
your notes, which was not then substantially argued by Don 
Pedro Cevallos, and to which every reply essential to eluci- 
date the rights and establish the pretensions on the part of 
the United States was then given." Without, therefore, no- 
ticing even in the slightest manner that portion of the Spanish 
title now for the first time set out in respect of the Californias, 
and which had not in any manner been alluded to in the pre- 
vious correspondence, he simply proposed, " the Colorado 
River from its mouth to its source, and from thence to the 
northern limits of Louisiana, to be the western boundary ; or 
to leave that boundary unsettled for future arrangement." It 
may be observed, that the paramount object of the United 
States at this moment, was to obtain the cession of the 
Spanish claims to territories eastward of the Mississippi. 
[State Papers, ] 817-18, p. 450.] The western frontier was 
comparatively of less pressing importance. 

Various communications having in the mean time been ex- 
changed, Mr. Adams at last, in his letter of Oct. 31, 1818, 
proposed for the first time, on the part of the United States, 
an extension of the boundary to the Pacific Ocean, namely, 
a line drawn due west along the 41st parallel. He did not 
attempt, on this occasion, to contest the position which Spain 
had taken up in respect to territory west of the Rocky Moun- 
tains, but contented himself with again asserting, that the 
rights of the United States to the entire valley of the Missis- 
sippi and its confluents were established beyond the reach of 
controversy. Mr. Greenhow [p. 316] observes, " On these 
positive assertions of the Spanish minister, Mr. J. Q. Adams, 
the American plenipotentiary and Secretary of State, did not 
consider himself required to make any comment ; and the 
origin, extent, and value of the claims of Spain to the north- 
western portion of America, remained unquestioned during 
the discussion." 

The Spanish commissioner seems to have regarded the 
silence of Mr. Adams as a tacit admission that his position 
was unassailable, and therefore was totally unprepared for the 
proposal of the United States, if we may judge from his 
reply : — " What you add respecting the extension of the 
same line beyond the Missouri, along the Spanish posses- 
sions to the Pacific Ocean, exceeds by its magnitude and 
its transcendency all former demands and pretensions stated 
by the United Slates. Confining, therefore, myself to the 



PLAN OF THE TRESIDENT. 169 

power granted to me by my sovereign, I am unable to 
stipulate any thing on this point. [State Papers, 1818-19, 
p. 284.] 

Mr. Adams, in his reply of Nov. 30, IBIS, [ibid. 291,] 
writes, " As you have now declared that you are not autho- 
rised to agree, either to the course of the Red River, [Rio 
Roxo,] for the boundary, nor to the 41st parallel of latitude, 
from the Snow Mountains to the Pacific Ocean, the President 
deems it useless to pursue any further the attempt at an ad- 
justment of this object by the present negotiation." Don 
Luis, in withdrawing for the present moment from the nego- 
tiation, in his letter of Dec. 12, 1818, [ibid., p. 502,] observes, 
" I even expressed my earnest desire to conclude the nego- 
tiation, so far as to admit the removal of the boundary line, 
from the Gulf of Mexico, on the river Sabine, as proposed 
by you ; and I only added, that it should run more or less 
ciDliquely to the Missouri, thereby still keeping in view the 
consideration of conciliating the wish that your government 
might have, of retaining such other settlements as might have 
been formed on the bank of that river, and observing, never- 
theless, that it was not to pass by New Mexico, or any other 
•provinces or dominions of the crown of Spain. ''^ 

The Spanish commissioner, after obtaining fresh instruc- 
tions to authorize him to extend the. boundary line to the Pa- 
cific Ocean, stated in a letter of Jan. 16, 1819, to Mr. Adams, 
[State Papers, 1819-20, p. 565,] that *' his Majesty will agree 
that the boundary line between the two states shall extend 
from the source of the Missouri, westward to the Columbia 
River, and along the middle thereof to the Pacific Ocean ; 
in the hope that this basis would be accepted by the President, 
" as it presents the means of realizing his great plan of ex- 
tending a navigation from the Pacific to the remotest points 
of the northern states." 

This offer was not accepted, and Mr. Adams, in his reply 
of Jan. 29, 1819, simply stated, "that the proposal to draw 
the western boundary line between the United States and the 
Spanish territories on this continent, from the source of the 
Missouri to the Columbia River, cannot be admitted," (ibid, 
p. 566 ;) and at the same time he renewed his proposal of 
the 31st of October last, as to the parallel of 41°. 

Don Luis de Onis, as might be expected, did not accede 
to this, and in his next letter, of Feb, 1, 1819, writes, "I 
have proved to you in the most satisfactory manner, that 



170 SPANISH CONCESSIONS. 

neither the Red River of Natchitoches, nor the Columbia, 
ever formed the boundary of Louisiana ; but as you have inti- 
mated to me that it is useless to pursue the discussion any 
further, I acquiesce with you tliercin, and I agree that, keep- 
ing out of view the rights which either party may have to the 
territory in dispute, we should confine ourselves to the settle- 
ment of those points which may be for the mutual interest 
and convenience of both. 

" Upon this view, therefore, of the subject, and considering 
that the motive for declining to admit my proposal of extend- 
ing the boundary line from the Missouri to the Columbia, and 
along that river to the Pacific, appears to be the wish of the 
President to include, within the limits of the Union, all the 
branches and rivers emptying into the said River Columbia, I 
will adapt my proposals on this point, so as fully to satisfy 
the demand of the United States, without losing sight of the 
essential object, namely, that the boundary line shall, as far 
as possible, be natural and clearly defined, and leave no room 
for dispute to the inhabitants on either side." 

He therefore proposed, as the Red River rose within a few 
leagues of Santa Fe, the capital of New Mexico, to substitute 
the Arkansas for the Red River ; so that the line along the Red 
River should not be drawn further westward than the 95th 
degree of longitude, and crossing it at that point, should run 
due north to the Arkansas, and along it to its source ; thence, 
by a line due west, till it strikes the source of the River St. 
Clemente, or Multnomah, in latitude 41°, and along that river 
to the Pacific Ocean. The whole agreeably to Melish's 
map."— (State Papers, 1819-20, p. 568.) 

Mr. Adams on the other hand, on Feb. 6, 1819, repeated 
the proposal of the United States as to the line from the 
source of the Arkansas River being drawn along the pa- 
rallel of 41° N. L. to the Pacific, with other modifications in 
the general detail of the boundary. 

This proposal, however, was not accepted, and the Spanish 
commissioner in his turn, on Feb. 9, proposed a dilferent line, 
to be drawn " along the middle of the Arkansas to the 42° of 
latitude ; thence a line shall be drawn westward by the same 
parallel of latitude to the source of the River San Clemente or 
Multnomah, following the course of that river to the 43° of 
latitude, and thence by a line to the Pacific Ocean." (Ibid. 
p. 570.) 

Mr. Adams, in his answer of February 1-3, 1810, still re- 



CONTKAST OF CLAIMS. 171 

tained the parallel of 41° of latitude from the source of the 
Arkansas to the South Sea, according to Melish's map, (Ibid, 
p. 575.) 

The Chevalier de Onis, on the 16th of February 1819, 
ultimately agreed " to admit the 42° instead of the 43° of 
latitude from the Arkansas to the Pacific Ocean." (Ibid. 
p. 580.) 

These extracts from the documentary correspondence pre- 
liminary to the Treaty of 1819, will show the nature of the 
claims maintained by the two parties, and thus serve to ex- 
plain the meaning of the third article of the treaty. Spain 
asserted her right and dominion over the northwest coast of 
America as high up as the Californias, as based upon the dis- 
coveries of Juan de Fuca in 1592, and Admiral Fonte in 
1640. The United States made no claim to territory west of 
the Rocky Mountains. On the other hand, the United States 
asserted her right over the coasts of the Mexican Gulf from 
the Mississippi to the Rio Bravo by virtue of Crozat's grant, 
and of the settlement of La Salle in the Bay of St. Bernard, 
whilst Spain maintained that the expedition of Hernando de 
Soto and others entitled her by discovery to the entire coasts 
of the Mexican Gulf, and that the crown of Spain, before 
1763, had extended her dominion eastward over the right 
side of the Mississippi from its mouth to the mouth of the 
Missouri, and northward over the right side of the latter river 
from its mouth to its source ; in other words, that the depen- 
dencies of the Spanish province of New Mexico extended as far 
as the Missouri and the Mississippi, and the Spanish province 
of Texas as far as the Red River and Mississippi. The rights, 
claims, and pretensions, therefore, to any territories lying 
east and north of the parallel of 42°, which Spain, by the 3rd 
article of the Treaty of 1819, ceded to the United States, 
had respect to the Spanish province of Texas, the Spanish 
province of New Mexico, and the Californias ; the rights, 
claims, and pretensions which the United States ceded to his 
Catholic Majesty to any territories west and south of this 
line, had reference to the coasts of the Gulf of Mexico as far 
the Rio Bravo, and the inland country ; for no claim or pre- 
tension had been advanced by the United States to territory 
beyond the Rocky Mountains, and the object of the negotia- 
tion was expressly to determine the boundaries of Louisiana, 
which the United States insisted had been ceded to them in 
the full extent in which it had been possessed by France, 



172 POSSESSION OF THE SEA-COAST. 

according to the limits marked out by Louis XIV. in his 
grant to Crozat. 

In the course of these negotiations, we find certain princi- 
ples of international law laid down by the commissioners of 
the United States as applicable to the question of disputed 
boundaries. They seem to have been advanced after careful 
consideration, for Messrs. Pinckney and Monroe formally 
enunciated them on the 20th of April 1805, as " dictated by 
reason, and adopted in practice by European Powers in the 
discoveries and acquisitions which they have respectively 
made in the new world;" and Mr. Adams, on the 12th of 
March iy20, restated them again as principles " sanctioned 
alike by immutable justice, and the general practice of the 
European nations, which have formed settlements and held 
possessions in this hemisphere." (British and Foreign State 
Papers, 1817-19, pp. 327, 467.) 

The first is, " That whenever any European nation takes 
j)ossession of any extent of sea-coast, that possession is under- 
stood as extending into the interior country, to the sources of 
the rivers emptying within that coast, to all their branches, 
and the country they cover, and to give it a right in exclusion 
of all other nations to the same." 

" It is evident," wiite Messrs. Pinckney and Monroe, (ibid., 
p. 327,) " that some rule or principle must govern the rights 
of European Powers in regard to each other in all such cases, 
and it is certain that none can be adopted, in those to which 
it applies, more reasonable or just than the present one. 
Many weighty considerations shew the propriety of it. Na- 
ture seems to have destined a range of territory so described 
for the same society, to have connected its several parts to- 
gether by the ties of a common interest, and to have detached 
them from others. If this pri/;ciple is departed from, it must 
be by attaching to such discovery and possession, a more en- 
larged or contracted scope of acquisition ; but a shght atten- 
tion to the subject will demonstrate the absurdity of either. 
The latter would be to restrict the rights of a European 
Power, who discovered and took possession of a new country, 
to the spot on which its troops or settlements rested, a doc- 
trine which has been totally disclaimed by all the Powers who 
made discoveries and acquired possessions in America. The 
other extreme would be equally im|)r o|)er ; that is, that the 
nation who made such discovery should, in all cases, be en- 
titled to the whole of the territory so discovered. In the 



EXTENT OF SETTLEMENT. 173 

case of an island, whose extent was seen, which might be 
soon sailed round, and preserved by a few forts, it may apply 
with justice ; but in that of a continent it would be abso- 
lutely absurd. Accordingly, we find, that this opposite ex- 
treme has been equally disclaimed and disavowed by the 
doctrine and practice of European nations. The great con- 
tinent of America, north and south, was never claimed or 
held by any one European nation, nor was either great 
section of it. Their pretensions have been always bounded 
by more moderate and rational principles. The one laid 
down has obtained general assent. 

" This principle was completely established in the contro- 
versy which produced the war of 1755. Great Britain con- 
tended that she had a right, founded on the discovery and 
possession of such territory^ to define its boundaries by given 
latitudes in grants to individuals, retaining the sovereignty to 
herself from sea to sea. This pretension on her part was 
opposed by France and Spain, and it was finally abandoned 
by Great 13ritain in the treaty of 1768, which established the 
Mississippi as the western boundary of her possessions. It 
was opposed by France and Spain on the prijiciple here in- 
sisted on, which of course gives it the highest possible sanction 
in the present case.'^ 

To a similar purport Vattel, b. i., § 266, writes : " When a 
nation takes possession of a country, with a view to settle 
there, it takes possession of every thing included in it, as 
lands, lakes, rivers, dz;c." It is universally admitted, that 
when a nation takes possession of a country, she is considered 
to appropriate to herself all its natural appendages, such as 
lakes, rivers, &c., and it is perfectly intelligible, why the 
practice of European nations has sanctioned the exclusive 
title of the first settlers on any extent of sea-coast to the in- 
terior country within the limits of the coast which they have 
occupied, because their settlements bar the approach to the 
interior country, and other nations can have no right of way 
across the settlements of independent nations. In reference, 
however, to the extent of coast, which a nation may be pre- 
sumed to have taken possession of by making a settlement in 
a vacant country, the well-known rule of te7TCB dominium fini- 
tur, ubifnitur armorum vis, might on the first thought suggest 
itself; but it has not been hitherto held that there is any 
analogy between jurisdiction over territory, and jurisdiction 
over adjoining seas : on the contrary, it was ruled in the 



174 I^'CONSISTENT ARGUMENTS. 

Circuit Court of New York, 1825, in the case of Jackson v. 
Porter, 1 Paine, 467, " that under the second article of the 
treaty with Great Britain, the precincts and jurisdiction of a 
fort are not to be considered three miles in every direction, 
by analogy to the jurisdiction of a country over that portion 
of the sea surrounding its coasts, but they must be made out 
by proof." The comity of nations, however, has recognised 
in the case of settlements made in a vacant territory for the 
purpose of colonisation, a title in the settlers to such an ex- 
tent of territory as it may fairly be presumed that they intend 
to cultivate (Vattel, b. i., § 81,) and the possession of which 
is essential either to the convenience or security of the settle- 
ment, without being inconvenient to other nations. The 
limitation of this extent seems rather to have been regulated 
by special conventions, than by any rule of uniform practice. 

On the authority of this principle as above stated, Messrs. 
Pinckney and Monroe contended, that " by the discovery and 
possession of the Mississippi in its whole length, and the coast 
adjoining it, the United States are entitled to the whole 
country dependent on that river, the waters which empty into 
it, and their several branches, wiihin the limits on that coast. 
The extent to which this would go it is not in our power to 
say ; but the principle being clear, dependent on plain and 
simple facts, it would be easy to ascertain it." 

It will have been observed, that the opposition of France 
and Spain to the pretensions of Great Britain is adduced by 
Messrs. Pinckney and Monroe, as giving the highest sanc- 
tion to this principle. A passage in Mr. Calhoun's letter of 
Sept. 3, 1844, to Mr. Pakenham forms a striking contrast. 
Having alluded to the claims of France and Great Britain, 
first conflicting on the banks of the Ohio, he writes : '* If the 
relative strength of these different claims may be tested by 
the result of that remarkable contest, that of continuity west- 
ward must be pronounced to be the stronger of the two. Eng- 
land has had at least the advantage of the result, and would 
seem to be foreclosed against contesting the principle — par- 
ticularly as against us, who contributed so much to that re- 
sult, and on whom that contest, and her example and her 
pretensions from the first settlement of our country, have 
contributed to impress it so deeply and indelibly." In other 
respects Mr. Calhoun adopts the same view of the early 
European settlements in North America, that the respective 
nations "claimed for their settlements usually, specific limits 



CONTERMINOUS SETTLEMENTS. 175 

alo?ig the coasts or bays on which they were formed, and gene- 
rally a region of corresponding width extending across the 
entire continent to the Pacific Ocean." 

That the hypothesis of Mr. Calhoun's argument was meant 
to be affirmed, may be inferred from Mr. Gallatin having 
categorically asserted the same fact in 1826, as being notorious. 
It does not however appear from the protracted negotiations 
prior to the Treaty of Paris, that any conflicting principles 
of international law were advanced by the two parties, or any 
question of disputed title set at rest by the treaty. On the 
contrary, it was intimated in the course of the negotiations, 
by Great Britain, that she considered France to have the 
natives on the left bank of the Mississippi under her protec- 
tion, when she proposed that the King of France should 
"consent to leave them under the protection of Great Bri- 
tain." 

The second rule is, *'that whenever a European nation 
makes a discovery, and takes possession of any portion of 
that continent, and another afterwards does the same at some 
distance from it, where the boundary between them is not 
determined by the principle above mentioned, the middle dis- 
tance becomes such of course. The justice and propriety of 
this rule are too obvious to require illustration." 

The principle here stated seems very analogous to that 
which is recognised by all writers on international law, as 
regulating the navigation of rivers. Thus Vattel (i., § 266) — 
" When a nation takes possession of a country bounded by a 
river, she is considered as appropriating to herself the river 
also ; for the utility of a river is too great to admit a sup- 
position that the nation did not intend to reserve it for her- 
self Consequently, the nation that first established her 
dominion on one of the banks of the river, is considered as 
being the first possessor of all that part of the river which 
bounds her territory. Where there is a question of a very 
broad river, this presumption admits not of a doubt, so far, at 
least, as relates to a part of the river's breadth, and the 
strength of the presumption increases or diminishes in the 
inverse ratio with the breadth of the river ; for the narrower 
the river is, the more does the safety and convenience of its 
use require that it should be subject entirely to the empire and 
property of that nation." To make the reasoning more com- 
plete, it might have been added, " the broader the river is, the 
stronger claim has each party to a portion of it, as requisite 



178 ACQUISITIONS FROM NATIVES. 

for its own convenience, and not likely to be attended with 
inconvenience to the other party." 

Mr. Wheaton states the rule of division more explicitly 
(part ii., ch. iv.) — " Where a navigable river forms the 
boundary of conterminous states, the middle of the channel, 
or ' thalweg,' is generally taken as the line of separation be- 
tween the two states, the presumption of law being, that the 
right of navigation is common to both : but this presumption 
may be destroyed by actual proofs of prior occupancy, and 
long undisturbed possession giving one of the riparian pro- 
prietors the exclusive title to the entire river." 

In an analogous manner, where a large tract of unoccupied 
land forms the boundary of conterminous settlements, the 
middle distance is suggested by natural equity as the line of 
demarcation, where such line is not inconvenient to either 
party, and when one party cannot establish a stronger pre- 
sumption than the other of a perfect right in its own favour. 

Thus, Messrs. Pinckney and Monroe contended, that " by 
the application of this principle to the discovery made by M. 
de la Salle of the bay of St. Bernard, and his establishment 
there on the western side of the River Colorado, the United 
States have a just right to a boundary founded on the middle 
distance between that point and the then nearest Spanish 
settlement ; which, it is understood, was in the province of 
Panuco, unless that claim should be precluded on the principle 
above mentioned. To what point that would carry us, it is 
equally out of our power to say ; nor is it material, as the 
possession in the bay of St. Bernard, taken in connection 
with that on the Mississippi, has been always understood, as 
of right we presume it ought, to extend to the Rio Bravo, on 
which we now insist." 

The third rule is, " that whenever any European nation 
has thus acquired a right to any portion of territory on that 
continent, that right can never be diminished or affected by 
any other Power, by virtue of purchases made, by grants, or 
conquests of the natives within the limits described." 

" it is believed," continued the commissioners, " that this 
principle has been admitted, and acted on invariably, since 
the discovery of America, in respect to their possessions there, 
by all the European Powers. It is particularly illustrated by 
the stipulations of their most important treaties concerning 
those possessions, and the practice under them, viz., the 
Treaty of Utrecht in 1713, and that of Paris in 1763." 



RIGHT OF PRE-EMPTION. 177 

The practice of European nations has certainly recognised 
in the nation which has tirst occupied the territory of savage 
tribes, that live by hunting, fishing, and roaming habits, the 
sole right of acquiring the soil from the natives by purchase, 
or cession, or conquest, for the purpose of establishing settle- 
ments. The more humane spirit of the modern code of 
nations seems disposed to reduce this right to a right of pre- 
emption, as against other European nations. 

The applicability of the above principles to the solution of 
the questions at present under discussion between the 
governments of the United States and Great Britain, will be 
considered in a subsequent chapter. 



179 



CHAPTER XIV. 

NEGOTIATIONS BETWEEN GREAT BRITAIN AND THE UNITED 
STATES IN 1823-24. 

Proceedings in Congress after the Convention of 1818. — Russian Ukase 
of 1821,— Russian Title to the North-west Coast of America. — Declara- 
tion of President Monroe, of Dec. 2, 1823. — Protest of Russia and 
Great Britain.- -Report of General Jessup. — Exclusive Claim set up by 
the United States, on the Ground of Discovery by Captain Gray, and 
Settlement at Astoria.— Extent of Title by Discovery of the Mouth of a 
River. — The United States claim up to 51° N. L. — British Objections. 
— Convention of 1790. — Discovery by Captain Gray a private En- 
terprise. — Mr. Rush's Reply. — -Gray's Vessel a national Ship for 
such an Occasion. — Superior Title of Spain- — British Answer. — Pre. 
tensions of Spain never admitted. — Drake's Expedition in 1578. — Mr. 
Rush's further Reply. — Treaty of 1763, a Bar to Great Britain west- 
ward of the Mississippi. — Exclusive Claim of the United States to the 
entire Valley of the Columbia River.— Proposal of the British Com- 
missioners of the Parallel of 49^ to the North-easternmost Branch of the 
Columbia, and thence along the Mid-channel of the River to the Sea. — 
Counter-proposal of the United States of the Parallel of 49° to the Sea. 
— Negotiations broken off. 

The Convention of 1818 had provided that the country west- 
ward of the Stony Mountains should be free and open, for the 
term of ten years from the signature of the treaty, to the 
vessels, citizens, and subjects of the two Powers, without 
prejudice to the territorial claims of either party. Two years 
afterwards a committee was appointed by the House of 
Representatives in Congress, for an " inquiry as to the situa- 
tion of the settlements on the Pacific Ocean, and as to the 
expediency of occupying the Columbia River ;" and a bill 
was subsequently brought in *' for the occupation of the 
Columbia, and the regulation of the trade with the Indians in 
the territories of the United States." The bill, however, was 
suffered to lie on the table of the House, and although it was 
again brought before Congress in the ensuing year, no further 
steps were taken until the winter of 1823. (Greenhow, p. 
332.) 

In the mean time the attention of both Powers was arrested 
by the publication of a Russian ukase on 10th September 



DECLARATION OF PRESIDENT MONROE. 179 

1S21, by which an exclusive title was asserted in favour of 
Russian subjects to the north-west coast of America, as far 
south as 51° north lat., and all foreign vessels were prohibited 
from approaching within one hundred miles of the shore, under 
penalty of confiscation. Great Britain lost no time in protest- 
ing against this edict, and Mr. Adams, on the part of the 
United States, declined to recognise its validity. A corres- 
pondence ensued between Mr. Adams and M. de Poletica, the 
Russian Minister at Washington, which may be referred to in 
the British and Foreign State Papers for 1821-22. M. de 
Poletica alleged, as authorising this edict on the part of the 
Eraperorj first discovery, first occupancy, and, in the last 
place, a peaceable and uncontested possession of more than 
half a century. Both the other Powers, however, contested 
the extent to which so perfect a title could be made out by 
Russia, and separate negotiations were in consequence opened 
between Russia and the other two Powers for the adjustment 
of their conflicting claims. The question was additionally 
embarrassed by a declaration on the part of President Monroe, 
on December 2, 1823, that the " American continents, by the 
free and independent condition which they had assumed, were 
henceforth not to be considered as subjects for colonisation by 
any European power." (Greenhow, p. 325.) Against this 
declaration, both Russia and Great Britain formally protested. 
A further ground of dissension between Great Britain and the 
United States resulted from an official paper laid before the 
House of Representatives in Congress, on February 16, 1824, 
by General Jessup, the Quartermaster-General, in which it 
was proposed to establish certain military posts between 
Council Bluffs on the Missouri, and the Pacific, by which, he 
adds, " present protection would be afforded to our traders ; 
and at the expiration of the privilege granted to British sub- 
jects to trade on the waters of the Columbia, we should be 
enabled to remove them from our territory, and to secure the 
whole trade to our citizens." In the conference which en- 
sued at London on the following July, the British commission- 
ers remarked that such observations " were calculated to put 
Great Britain especially upon her guard, coming, as they did, 
at a moment when a friendly negotiation was pending be- 
tween the two Powers for the adjustment of their relative and 
conflicting claims to the entire district of the country." 
(Greenhow, p. 337.) 

Such proceedings on the part of the Executive of the United 



180 CLAIMS OF THE UNITED STATES. 

States were not calculated to facilitate the settlement of the 
points likely to become subjects of controversy in the approach- 
ing negotiations, eitiier at St. Petersburgh or at London. 
The instructions which were to guide the commissioners of 
the United States were set forth by Mr. Adams, in a letter to 
Mr. Rush, the Minister Plenipotentiary at London, of the 
date of July 22, 1823, which may be referred to in the British 
and Foreign State Papers, 1825-26, p. 498. In the previous 
negotiations of 1818, as already observed, Messrs. Gallatin 
and Rush " did not assert a 'perfect righf^ to the country west- 
ward of the Stony Mountains, but insisted that their claim 
"Was •' at least good against Great BritainJ'^ The 49th degree 
of north latitude had, in pursuance of the Treaty of Utrecht, 
been fixed indefinitely as the line between the northern 
British possessions and those of France, including Louisiana, 
now a part of our territories. There was no reason why, if 
the two countries extended their claims westward, the same 
line should not be continued to the Pacific Ocean. So far as 
discovery gave a claim, ours to the whole country on the 
waters of the Columbia River was indisputable." Subsequent- 
ly, however, to these negotiations. His Catholic Majesty had 
ceded to the United States, by the Treaty of Washington, of 
February 22, 1819, commonly called the Florida Treaty, " all 
his rights, claims, and pretensions to any territory" north of 
the 42d parallel of north latitude ; and Mr. Rush opened the 
negotiations by stating, that *' the rights thus acquired from 
Spain were regarded by the government of the United States 
as surpassing the rights of all other European Powers on that 
coast." Apart, however, from this right, " the United States 
claimed in their own right, and as their absolute and exclusive 
sovereignty and dominion, the whole of the country west of 
the Rocky Mountains, from the 42d to at least as far up as the 
61st degree of north latitude. This claim they rested upon 
their first discovery of the river Columbia, followed up by an 
effective settlement at its mouth : a settlement which was re- 
duced by the arms of Britain during the late war, but formal- 
ly surrendered up to the United States at the return of peace. 
" Their right by first discovery they deemed peculiarly 
strong, having been made, not only from the sea by Captain 
Gray, but also from the interior by Lewis and Clarke, who 
first discovered its sources, and explored its whole inland 
course to the Pacific Ocean. It had been ascertained that 
thp; Columbia extended, bv the River Multnomah, to as low 



COLOKIAL RIGHTS OF SPAIIT. 181 

as 42 degrees north ; and by Clarke's River, to a point as 
high up as 51 degrees, if not beyond that point ; and to this 
entire range of country, contiguous to the original dominion 
of the United States, and made a part of it by the almost in- 
termingling waters of each, the United States considered their 
title as established by all the principles that had ever been ap- 
plied on this subject by the Powers of Europe to settlements 
in the American hemisphere. I asserted," writes Mr. Rush, 
*' that a nation discovering a country^ by entering the month of 
its principal river at the sea coast, must necessarily be allowed 
to claim and hold as great an extent of the interior country as 
was described by the course of such principal river and its tribu- 
tary streams ; and that the claim to this extent became doub- 
ly strong, where, as in the present instance, the same river had 
also been explored from its very mountain-springs to the sea. 
" Such an union of titles, imparting a validity to each other, 
did not often exist. I remarked, (hat it was scarcely to be 
presumed that any European nation would henceforth project 
any colonial establishment on any part of the north-west coast 
of America, which as yet had never been used to any other 
useful purpose than that of trading with the aboriginal inhabi- 
tants, or fishing in the neighbouring seas ; but that the United 
States should contemplate, and at one day form, permanent 
establishments there, was naturally to be expected, as proxi- 
mate to their own possessions, and falling under their imme- 
diate jurisdiction. Speaking of the Powers of Europe, who 
had ever advanced claims to any part of this coast, I referred 
to the principles that had been settled by the Nootka Sound 
Convention of 1790, and remarked, that Spain had now lost 
all the exclusive colonial rights that were recognised under that 
convention, first, by the fact of the independence of the South 
American States and of Mexico, and next, by her express re- 
nunciation of all her rights, of whatever kind, above the 42 de- 
gree of north latitude, to the United States. Those new 
States would themselves now possess the rights incident to 
their condition of political independence, and the claims of the 
United States above the 42 parallel, as high up as 60°, claims 
as well in their own right as by their succession to the title of 
Spain, would henceforth necessarily preclude other nations 
from forming colonial establishments upon any part of the 
American continents. I was, therefore, instructed to say, 
that my government no longer considered any part of those 
continents as open to future colonisation by any of the Powers 

9 



182 PROPOSAL OF THE L'NITKD STATES, 

of Europe, and that this was a principle upon which [ should 
insist in the course of these negotiations." 

The proposal which Mr. Rush was authorised to make on 
the part of the United States was, that for the future no settle- 
ments should he made by citizens of the United States north 
of 51°, or by British subjects south of 51°, inasmuch as the 
Columbia River branched as far north as 51®. Mr. x\dams, 
however, in his instructions, concludes with these words : — 
*'As, however, the line already runs in latitude 49° to the Stony 
Mountains.should it be earnestly insisted upon by Great Britain, 
we will consent to carry it in continuance on the same parallel 
to the sea." 

On the other hand the British plenipotentiaries, on their 
part, totally declined the proposal, and totally denied the prin- 
ciples under which it had been introduced. "They said that 
Great Britain considered the whole of the unoccupied parts of 
America as being open to her future settlements, in like man- 
ner as heretofore. They included within these parts, as well 
that portion of the north-west coast lying between the 42d and 
61st degree of latitude, as any other parts. The principle of 
colonisation on that coast, or elsewhere, on any portion of those 
continents not yet occupied, Great Britain was not prepared 
to relinquish. Neither was she prepared to accede to the ex- 
clusive claim of the United States. She had not, by her con- 
vention with Spain of 1790, or at any other period, conceded 
to that Power any exclusive rights on that coast, where ac- 
tual settlements had not been formed. She considered the 
same principles to be applicable to it now as then. She could 
not concede to the United States, who held the Spanish title, 
claims which she had felt herself obliged to resist when ad- 
vanced by Spain, and on her resistance to which the credit of 
Great Britain had been thought to depend. 

" Nor could Great Britain at all admit, the plenipotentiaries 
said, the claim of the United States, as founded on their own 
first discovery. It had been objectionable with her in the ne- 
gotiation of 1818, and had not been admitted since. Her 
surrender to the United States of the post at Columbia River 
after the late war, was in fulfilment of the provisions of the 
first article of the Treaty of Ghent, without affecting ques- 
tions of right on either side. Britam did not admit the validi- 
ty of the discovery by Captain Gray. He had only been on 
an enterprise of his own, as an individual, and the British 
government was yet to be informed under what principles or 



183 

usage, among the nations of Europe, his having first entered 
or discovered the mouth of the River Columbia, admitting this 
to have been the fact, was to carry after it such a portion of 
the interior country as was alleged. Great Britain entered 
her dissent to such a claim ; and least of all did she admit that 
the circumstance of a merchant vessel of the United Slates 
having penetrated the coast of that continent at Columbia 
River, was to be taken to extend a claim in favour of the 
United States along the same coast, both above and below that 
river, over latitudes that had been previously discovered and 
explored by Great Britain herself, in expeditions fitted out 
under the authority and with the resources of the nation. 
This had been done by Captain Cook, to speak of no others, 
whose voyage was at least prior to that of Captain Gray. On 
the coast only a few degrees south of the Columbia, Britain 
had made purchases of territory from the natives before the 
United States were an independent power ; and upon that river 
itself or upon rivers that flowed into it, west of the Rocky 
Mountains, her subjects had formed settlements coeval with, if 
not prior to, the settlement by American citizens at its mouth." 

Such was the tenor of the opening of the negotiations. 
Mr. Rush, in resuming the subject, stated that it " was un- 
known to his government that Great Britain had ever even 
advanced any claim to territory on the north-west coast of 
America, by the right of occupation, before the Nootka Sound 
controversy. It was clear, that by the Treaty of Paris, of. 
1763, her territorial claims to America were bounded westward 
by the Mississippi. The claim of the United States, under the 
discovery by Captain Gray, was therefore, at all events, suffi- 
cient to over- reach, in point of time, any that Great Britain 
could allege along that coast, on the ground of prior occupa- 
tion or settlement. As to any alleged settlements by her sub- 
jects on the Columbia, or on rivers falling into it, earlier, or 
as early, as the one formed by American citizens at Astoria, 
I knew not of them, and was not prepared to admit the fact. 
As to the discovery itself of Capt. Gray, it was not for a mo- 
inent to be drawn into question. It was a fact before the 
whole world. The very geographers of Great Britain had 
adopted the name which he had given to this river." 

Having alluded to the fact of Vancouver having found 
Captain Gray there, Mr. Rush proceeded to meet the objec- 
tion that the discovery of the Columbia River was not made 
by a national ship, or under national authority. " The United 



194 DISCOVERY BY CAPTAIN GRAY. 

States," he said, " could admit of no such distinction ; could 
never surrender, under it or upon any ground, their claim to 
this discovery. The ship of Captain Gray, whether fitted out 
by the government of the United States, or not, was B.nafional 
shij). If she was not so in a technical sense of the word, she 
was in the full sense of it, ajypUcable to such an occasion. She 
bore at her stern the flag of the nation, sailed forth under the 
protection of the nation, and was to be identified with the 
rights of the nation.'' 

"The extent of this interior country attaching to this dis- 
covery was founded,*' Mr. Rush contended, " upon a principle 
at once reasonable and moderate : reasonable, because, as 
discovery was not to be limited to the local spot of a first 
landing-place, there must be a rule both for enlarging and 
circumscribing its range ; and none more proper than that of 
taking the water-courses which nature has laid down, both as 
the fair limits of the country, and as indispensable to its use 
and value ; moderate, because the nations of Europe had 
often, under their rights of discovery, carried their claims 
much farther. Here I instanced, as sufficient for my purpose, 
and pertinent to it, the terms in which many of the royal 
charters and letters patent had been granted, by the Crown 
of England, to individuals proceeding to the discovery or set' 
tlement of new countries on the American continent. Amongst 
others, those from Elizabeth in 1578, to Sir Humphery Gil- 
bert, and in 1584, to Sir Walter Raleigh : those from James 
I. to Sir Thomas Yates, in 1606 and 1607, and the Georgia 
charter of 1732. By the words of the last, a grant is passed 
to all territories along the sea-coast, from the River Savannah 
to the most southern stream ' of another great river, called 
the Alatamaha, and westward from the heads of the said 
rivers in a direct line to the South Seas.' To show that 
Britain was not the only European nation, who, in her terri- 
torial claims on this continent, had had an eye to the rule of 
assuming water-courses to be the fittest boundaries, I also 
cited the charter of Louis XIV. to Crozat, by which 'all the 
country drained by the waters emptying directly or indirectly 
into the Mississippi,' is declared to be comprehended under 
the name, and within the limits of Louisiana." 

In respect to the title derived by the United States from 
Spain, Mr. Rush contended that, ''if Great Britain had put 
forth no claims on the north-west coast, founded on prior 
occupation^ still less could she ever have established any, at 



CLAIM OP THE UNITED STATES. 185 

any period, founded on prior discovery. The superior title of 
Spain on this ground, as well as others, was indeed capable 
of demonstration." Russia had acknowledged it in 1790, as the 
State Papers of the Nootka Sound controversy would show. 
The memorial of the Spanish Court to the British minister 
on that occasion expressly asserted, that notwithstanding all 
the attempted encroachments upon the Spanish coasts of the 
Pacific Ocean, Spain had preserved her possessions there en- 
tire, — possessions which she had constantly, and before all 
Europe, on that and other occasions, declared to extend to as 
high at least as the 60th degree of north latitude. The very 
first article of the Nootka Sound Convention attested, I 
said, the superiority of her title ; for whilst by it the nations 
of Europe generally were allowed to make settlements on 
that coast, it was only for the purposes of trade with the na- 
tives, thereby excluding the right of any exclusive or colonial 
establishments for other purposes. As to any claim on the 
part of Britain under the voyage of Captain Cook, I re- 
marked that this was sufficiently superseded (passing by every 
thing else) by the Journal of the Spanish expedition from 
San Bias in 1775, kept by Don Antonio Maurelle, for an ac- 
count of which I referred the British plenipotentiaries to the 
work of Daines Barrington, a British author. In that expe- 
dition, consisting of a frigate and a schooner, fitted out by 
the Viceroy of Mexico, the north-west coast was visited in 
latitude 45, 47, 49, 53, 55, 56, 57, and 58 degrees, not one of 
which points there was good reason for believing had ever 
been explored, or as much as seen, up to that day, by any 
navigator of Great Britain. There was, too, I said, the 
voyage of Juan Perez, prior to 1775 ; that of Aguilar, in 
1601, who explored that coast in latitude 45°; that of De Fuca 
in 1592, who explored it in latitude 48°, giving the name, 
which they still bore, to the straits in that latitude, without 
going through a much longer list of other early Spanish 
navigators in that sea, whose discoveries were confessedly of 
a nature to put out of view those of all other nations. I 
finished by saying, that in the opinion of my government, 
the title to the United States to the whole of that coast, 
from latitude 42° to as far north as latitude 60°, was there- 
fore superior to that of Great Britain or any other Power ; 
first, through the proper claim of the United States by dis- 
covery and settlement, and secondly, as now standing in the 
place of Spain, and holding in their hands all her title." 



186 BKITISIl REPLY. 

The British plenipotentiaries, in their reply, " repeated 
their animated denials of the title of the United States, as 
alleged to have been acquired by themselves, enlarging and 
insisting upon their objections to it, as already stated. Nor 
were they less decided in their renewed impeachments of 
the title of Spain. They said that it was well known to 
them what had formerly been the pretensions of Spain to 
absolute sovereignty and dominion in the South Seas, and 
over all the shores of America which they washed : but that 
these were pretensions which Britain had never admitted : 
on the contrary, had strenuously resisted them. They re- 
ferred to the note of the British minister to the Court of 
Spain, of May 16, 1790, in which Britain had not only as- 
serted a full right to an uninterrupted commerce and naviga- 
tion in the Pacific, but also that of forming, with the cojisent 
of the natives, whatever establishments she thought proper 
on the north-west coast, in parts not already occupied by 
other nations. This had been the doctrine of Great Britain, 
and from it, nothing that was due in her estimation to other 
Powers, now called upon her in any degree to depart. 

" As to the alleged prior discoveries of Spain all along that 
coast, Britain did not admit them but with great qualification. 
She could never admit that the mere fact of Spanish naviga- 
tors having first seen the coast at particular points, even 
where this was capable of being substantiated as the fact, 
without any subsequent or efficient acts of sovereignty or 
settlement on the part of Spain, was sufficient to exclude all 
other nations from that portion of the globe. Besides, they 
said, even on the score of prior discovery on that coast, at 
least as far up as 48*^ north latitude, Britain herself had a 
claim over all other nations. " Here they referred to Drake's 
expedition in 1578, who, as they said, explored that coast on 
the part of England, from 37° to 48° N., making formal 
claim to these limits in the name of Elizabeth, and giving 
the name of New Albion to all the country which they com- 
prehended. Was this, they asked, to be reputed nothing in 
the comparison of prior discoveries, and did it not even take 
in a large part of the very coast now claimed by the United 
States, as of prior discovery on their side ? " 

Mr. Rush in reply contended, *' as to Drake, although 
Fleurieu, in his introduction to Marchand, did assert that he 
got as far north as 48°, yet Hakluyt, who wrote about the 
time that Drake flourished, informs us that he got no higher 



VALLEY OF THE COLUMBIA. 187 

than 43'=, having put back at that point from extremity of 
cold. All the later authors or compilers, also, who spoke of 
his vo3^age, however they might differ as to the degree of 
latitude to which he went, adopted from Hakluyt this fact, of 
his having turned back from intensity of weather. The pre- 
ponderance of probability, therefore, I alleged, as well as of 
authority was, that Drake did not get beyond 43° along that 
coast. At all events, it was certain that he had made no 
settlements there, and the absence of these would, under the 
doctrine of great Britain, as applied by her to Spain, prevent 
any title whatever attaching to his supposed discoveries. 
They were moreover put out of view by the treaty of 1763, 
by which Great Britain agreed to consider the Mississippi as 
the western boundary upon that continent. 

He concluded with re-asserting formally, " the full and ex- 
clusive sovereignty o^ the United States over the whole of 
the territory beyond the Rocky Mountains washed by the 
Columbia River, in manner and extent as stated, subject, of 
course, to whatever existing conventional arrangements they 
may have formed in regard to it with other Powers. Their 
title to this whole country they considered as not to be shaken, 
it had often been proclaimed in the legislative discussions of 
the nation, and was afterwards public before the world. Its 
broad and stable foundations were laid in the first uncontra- 
dicted discovery of that river, both at its mouth and its 
isource, followed up by an effective settlement, and that settle- 
ment the earliest ever made upon its banks. If a title in the 
United States, thus transcendant, needed confirmation, it 
might be sought in their now uniting to it the title of Spain, 
it was not the intention of the United States, I remarked, to 
repose upon any of the extreme pretensions of that Power to 
speculative dominion in those seas, which grew up in less en- 
lightened ages, however countenanced in those ages ; nor had 
I, as their plenipotentiary, sought any aid from such preten- 
sions ; but to the extent of the just claims of Spain, ground- 
ed upon her fair enterprise and resources, at periods when her 
renown for both filled all Europe, the United States had suc- 
ceeded, and upon claims of this character it had, therefore, 
become as well their right as their duty to insist.'' 

The British plenipotentiaries, in conclusion, with a view 
as they said of laying a foundation of harmony between the 
two governments, proposed that the third article of the Con- 
vention of 1818 should now terminate. That " the boun- 



168 COUIfTEK-PROPOSAL OF THE UNITED STATES. 

dary line between the territories respectively claimed by the 
two Powers, westward of the Rocky Mountains, should be 
drawn due west, along the 49th parallel of latitude, to the 
point where it strikes the north-easternmost branch of the 
Columbia, and thence down along the middle of the Colum- 
bia to the Pacific Ocean : the navigation of this river to be 
for ever free to the subjects or citizens of both nations." 
The}' remarked, " that in submitting it, they considered Great 
Britain as departing largely from the full extent of her right, 
and that, if accepted by the United States, it would impose 
upon her the necessity of breaking up four or five settlements, 
formed by her subjects within the limits that would become 
prohibited, and that they had formed, under the belief of their 
full rights as British subjects to settle there. But their gov- 
ernment was willing, they sard, to make these surrenders, for 
so they considered them, in a spirit of compromise, on points 
where the two nations stood so divided." 

Mr. Rush, in reply, declared his utter inability to accept 
such a proposal, and in return consented, " in compliance 
with this spirit, and in order to meet Great Britain on ground 
that might be deemed middle, to vary so far the terms of his 
own proposal, as to shift the southern line as low as 49° in 
place of 51°." "I desired it," he writes, "to be understood, 
that this was the extreme limit to which I was authorised to 
go ; and that, in being willing to make this change, I, too, 
considered the United States as abating their rights, in the 
hope of being able to put an end to all conflict of claims 
between the two nations to the coast and country in dispute.'^ 

The British commissioners declined acceding to this pro- 
posal, and as neither party was disposed to make any modifi- 
cation in their ultimatum, the negotiation was brought to 3i 
close. 



189 



CHAPTER XV. 



EXAMINATION OF THE CLAI3IS OF THE UNITED STATES. 

Exclusive Sovereignty for the first Time claimed by the United States 
over the Valley of the Columbia. — The Statements relied upon to sup- 
port this, not correct. — The Multnomah River erroneously laid down 
in Maps. — Willamette Settlement — Source of the Multnomah, or Wil. 
lamette, in about 43° 45' N. L. — Clarke's River. — Source in 46° 
30'.— The Northernmost Branch of the Columbia discovered and explor- 
ed by Mr. Thomson. — The Pacific Fur Company not authorised by the 
United States Government. — The American Fur Company, chartered 
by the State of New York in 1809, a different Company for a different 
Purpose. — The Association dissolved at Astoria before the Arrival of H. 
B. M.'s Sloop of War the Racoon. — Protection of the National Flag. — 
Vattel. — Kluber — Letter from Mr. Gallatin to Mr. Astor. — A Commis- 
sion from the State required in respect of acquiring Territory. — Title by 
Discovery of the Mouth of a River. — Rivers Appendages to a Territory. 
— Vattel. — Common Use of great Rivers. — Mr. Wheaton. — Effect of 
the Principle to make the Highlands, not the Water Courses, the Bonn- 
daries. — Different Principle advanced by Messrs. Pickney & Monroe, in 
1805, founded on Extent of Sea Coast. — Vattel. — Charters of Georgia, 
Pennsylvania, and Carolina. — Crozat's Grant opposed to the Spanish 
Discovery of the Mississippi. — Inconvenience in applying the Principle. 
— Conflict of Titles. — Course of the Columbia River. — Valley of the 
Columbia River does not extend across the Cascade Range, on the North 
Side of the River. — Derivative Title of the United States from Spam. — 
Spanish Version, in 1790, of Encroachments by Russia. — The Russian 
Statement. — The Russian American Company, in 1799 — LordStowell. 
— Discoveries require Notification. — The Convention of the Escurial 
admitted to contain Recognitions of Rights. — Meaning of the Word 
" Settlements." 

It will have been seen in the previous chapter that Messrs. 
Rush and Gallatin, in the negotiations of 1823-24, no longer 
confined themselves to the assertion of an imperfect right 
on the part of the United States, good at least against Great 
Britain, as in the negotiations of 1818, but set up a claim on 
the part of the United States, intheir own right, to absolute and 
exclusive sovereignty and dominion over the whole of the 
country westward of the Rocky Mountains, from 42° to at 
least as high up as 51°. This claim they rested upon their 
first discovery of the River Columbia, followed up by an 
effective settlement at its mouth. 

In respect to the discovery of the river, they alleged the 
9* 



190 SOURCE OF THE MULTNOMAH RIVER. 

same facts as in 1818, namely, that Captain Gray, in the 
American ship Columbia, first discovered and entered its 
mouth, and that Captains Lewis and Clarke first explored it 
from its sources to the ocean. In respect to settlement, the 
establishment at Astoria was, as before, relied upon, having 
been formally surrendered up to the United States at the re- 
turn of peace. 

The American plenipotentiaries grounded the extent of the 
exclusive claim of the United States, in their own right, upon 
the fact that " it had been ascertained that the Columbia ex- 
tended by the River Multnomah to as low as 42° north, and 
by Clarke's River to a point as high up as 51°, if not beyond 
that point." In the first place, then, neither of these state- 
ments is correct. The erroneous notions respecting the 
Multnomah River have been already alluded to in the chapter 
upon the Treaty of Washington. To a similar purport, in 
the map prefixed to Lewis and Clarke's Travels, we find the 
source of the Multnomah laid down in 38° 45' north latitude, 
115° 45' west longitude from Greenwich, the river being re- 
presented to run a due north-west course, and to empty itself 
into the Columbia within about 140 miles of the sea. In 
the narrative of the expedition, Chapter XX., it is expressly 
stated, that they passed the mouth of this river in their way 
down the Columbia to the Pacific, and afterwards found it to 
be the Multnomah ; and in Chapter XXV. it is said that " the 
Indians call it Multnomah from a nation of the same name, 
residing near it, on Wappatoo Island." This Island lies in 
the immediate mouth of the river, dividing the channel into 
two parts. Now this river is the modern Willamette, which 
enters the Columbia from the south, about five miles below 
Fort Vancouver, about eighty-five miles from the sea, accord- 
ing to Mr. Dunn, and in the valley of this river, in a very fer- 
tile district, about fifty miles from its entrance into the Colum- 
bia, is the Willamette Settlement, where the majority of the 
colonists from the United States are located, though accord- 
ing to Commander Wilkes' account, (vol. iv., chap, x., p. 349, 
8vo. ed.,) many of the farms belong to Canadians who have 
been in the service of the Hudson's Bay Company. Actual 
survey, as may be seen from Commander Wilkes' map, has 
determined that the southernmost source of the Multnomah, 
or Willamette, is in about 43° 45' N. L. 

In respect to Clarke's River, the map of Lewis and Clarke 
places the highest source of it in about 45° 30', whilst Cora- 



PACmC FUR COMPANY* 191 

mander Wilkes' map determines it to be in about 46° 30'. It 
is the sam.e as the Flathead River, and it joins the main stream 
of the Columbia a little below the 49th parallel. It thus ap- 
pears that neither of the rivers upon which Mr, Rush relied, 
supports his claim to the extent which he maintained. Had 
he grounded the title of the United States towards the south 
upon the source of the Lewis or Snake River, which he may 
possibly have intended to do, this would have given him the 
42d parallel to commence with, and Clarke's River would 
have carried the claim of the United States up to very nearly 
49° at its junction with the northern branch, but no higher. 
Lewis and Clarke saw nothing, and knew nothing, of the 
northernmost branch of the Columbia, which Mr. Thomson, 
the astronomer of the North-west Company, first explored to 
its junction with Clarke's River, and thence to the sea, in 
1811, as already (p. 21) detailed. 

In reference to the settlement of Astoria, on the southern 
bank of the Columbia, at its mouth, the Pacific Fur Company 
does not appear to have been authorised by the United States 
Government to make any effective settlement there. On the 
contrary, it is asserted by writers in the United States, who, 
it may be presumed, are well informed on the subject, and 
the Charleston Mercury of October 11, 1845, expressly as- 
serts the fact, — " that the United States Government, though 
earnestly soHcited by Mr. Astor, refused to authorise or sanc- 
tion his expedition." Mr. Astor himself states, in his letter 
of January 4, 1823, to Mr. Adams, quoted by Mr. Greenhow 
in his Appendix, p. 441, that it was as late as February 1813, 
when he made an application to the Secretary of State at 
Washington, but no reply was given to it. In addition, al- 
though Mr. Astor, according to Mr. Washington Irving, ob- 
tained a charter from the State of New York in 1809, incor- 
porating a company under the name of the American Fur 
Company, this was intended to carry on the fur trade in the 
Atlantic States, and was a totally distinct speculation from 
the Pacific Fur Company, which was not formed before July 
1810, and was a purely voluntary association for commercial 
purposes, consisting of ten partners, of whom Mr. Astor was 
the chief. Of these, however, six were British subjects, who, 
according to Mr. Greenhow, p. 294, communicated the plan 
of the enterprise to tlie British minister at Washington, and 
were assured by him, " that in case of a war between the 
two nations they would be respected as British subjects and 



192 ASSOCIATION AT ASTORIA DISSOLVED. 

merchants.''^ Such a body of traders could hardly be consid- 
ered to invest their settlement at Astoria with any distinct 
national character, much less to represent the sovereignty of 
the United States of America, so as, in taking possession of 
a portion of territory at the mouth of the Columbia, to ac- 
quire for the United States the empire or sovereignty of it, at 
the same time with the domain. 

It must be kept in mind that the Pacific Fur Company was 
a purely voluntary association, a mercantile firm in fact, not 
incorporated, as the American Fur Company had been, by an 
Act of the Legislature of the State of New York, nor, though 
countenanced by the Government of the United States, as it 
well deserved to be, in any respect authorised by it. " The 
association," according to Mr. Washington Irving, " if suc- 
cessful, was to continue for twenty years, but the parties had 
fidl power to abandon and dissolve it within the first five years, 
should it be found unprofitable." And thus, we find, that the 
association was dissolved by the unanimous act of the part- 
ners present at Astoria on the 1st of July 1813, and the es- 
tablishment itself, with the furs and stock in hand, transfer- 
red by sale on the 6th of October to the North-west Company, 
so that when the British sloop-of-war the Racoon arrived on 
the 1st of December, the settlement at Astoria was the pro- 
perty of the North-west Company. Captain Black, formally 
took possession of Astoria in the name of his Britannic Ma- 
jesty, according to the narrative of Mr. John Ross Cox, and 
having hoisted the British ensign, named it Fort George. 
There is no mention however of the flag of the United States 
having been struck on this occasion. Thus, indeed, the ter- 
ritory was for the first time taken possession of by a person 
^^ furnished with a commission from his sovereign,'''' and from 
this time Astoria became a settlement of the British Crown, 
not by the rights of war, but by a national act of taking pos- 
session. At a subsequent period, however, upon the represen- 
tation of the Government of the United States, the British 
Government, in conformity, as it was led to suppose, to the 
first article of the Treaty of Ghent, directed the settlement 
of Fort George to be restored to the United States. The 
British ensign was then formally struck, and the flag of the 
United States hoisted. By this act of cession on the part of 
the Crown of Great Britain, and the subsequent taking pos- 
session of the place by Mr. Provost, as agent for the United 
States, Astoria for the first time acquired the national charac- 



THE STATE MUST TAKE POSSESSION. 193 

ter of a settlement of the United States ; and though the 
facts of the case, when better understood, might not have 
brought Astoria within the scope of the first article of the 
Treaty of Ghent, still the act of cession, having been a vol- 
untary act on the part of the British Government, would 
carry with it analogous consequences to those which followed 
the restoration of the settlement at Nootka Sound, on the part 
of Spain, to Great Britain, by virtue of the first article of the 
Treaty of the Escurial. From this period, then, the first au- 
thoritative occupation of any portion of the Oregon territory 
by the United States is to be dated. 

But it was alleged on the part of the United States, that the 
mouth of the Columbia river had been first discovered and 
entered by Captain Gray, a citizen of the United States, in a 
vessel sailing under the flag of the United States : and when 
it was urged by the British commissioners that the discovery 
was not made by a national ship, or under national authority, 
it was stated by Mr. Rush, that " the United States could ad- 
mit no such distinction, could never surrender under it, or 
upon any ground, their claim to this discovery. The ship of 
Captain Gray, whether fitted out by the government of the 
United States or not, was a national ship. If she was not so 
in a technical sense of the word, she was in the full sense of it 
applicable to such an occasion. She bore at her stern the flag 
of the nation, sailed forth under the protection of the nation, 
and was to be identified with the rights of the nation." 

The doctrine adduced in the above passage is not in accord- 
ance either with the practice of nations, or the principles of 
natural law. The occasion here contemplated was the dis- 
covery of a country with a view of taking possession of it. 
The practice of nations, according to Vattel, has usually res- 
pected such a discovery, when made by navigators furnished 
with a commission from their sovereign^ but not otherwise ; 
and according to Kluber, in order that an act of occupation 
should be legitimate, — and the same observation applies to all 
the acts which are accessorial to occupation, — the state ought 
to have the intention of taking possession. It may be per- 
fectly true that a merchant vessel, sailing under the flag of a 
nation, is under the protection of the nation, and is to be iden- 
tified with the rights of the nation, within the limits of its own 
proper character, that is, for all the purposes of commerce, 
but not beyond those limits : the flag, indeed, entitles it to 
all the privileges which the nation has secured to her citizens 



194 

by treaties of commerce, but the ship is the property of indi- 
viduals, and the captain is only the agent of the owners : he 
possesses no authority from the nation, unlike the captain of a 
vessel of the state, who is the agent of the state, and for whose 
acts the state is responsible towards other states. The Gov- 
ernment of the United States, however, did not consider, about 
the time of these transactions at Astoria, that a trading ves- 
sel, sailing under the command of a private citizen, could 
claim the protection of the flag in the same sense in which 
a ship of the state possesses it, under the command of a com- 
missioned officer. Mr. Washington Irving has annexed, in 
the Appendix to his " Astoria," a letter from Mr. Gallatin 
himself, addressed to Mr. Astor, in August 6, 1835 : — " Dur- 
ing that period I visited Washington twice — in October or 
November 1815, and in March 1816. On one of these two 
occasions, and I believe on the last, you mentioned to me that 
you were disposed once more to renew the attempt and to re- 
establish Astoria, provided you had the protection of the Ameri- 
can flag : for which purpose a lieutenant's command would 
be sufficient to you. You requested me to mention this to 
the President, which I did. Mr. Madison said he would con- 
sider the subject ; and, although he did not commit himself, 
I thought that he received the proposal favourably." This 
distinction, which the highest authorities in the United States 
seem at that time to have fully appreciated, between the pro- 
tection of the national flag in respect of acquiring territory, 
and the protection of it in respect of carrying on commerce, 
namely, that a commission from the state is required to convey 
the former, whilst the latter is enjoyed at his own will by every 
citizen, is seemingly at variance with Mr. Rush's remarks. 

The principle, however, upon which Captain Gray's dis- 
covery, on the hypothesis that it was a national discovery, 
v/as alleged to lead to such important consequences, was 
thus stated : — "I asserted," writes Mr. Rush, *'that a na- 
tion discovering a country by entering the mouth of its 
principal river at the sea coast, must necessarily be allowed 
to claim and hold as great an extent of the interior country 
as was described by the course of such principal river and its 
tributary streams." This is a very sweeping declaration, 
more particularly when applied to the rivers of the New 
World ; and, in order that it should command the acquies- 
cence of other states, it must be agreeable either to the prin- 
ciples of natural law, or to the practice of nations. 



COMMON USE OF RIVERS. 195 

The principles involved in this position seem to be, that the 
discoverer of the mouth of a river is entitled to the exclusive 
use of the river ; and the exclusive use of the river entitles 
him to the property of its banks. This is an inversion of the 
ordinary principles of natural law, which regards rivers and 
lakes as appendages to a territory, the use of which is neces- 
sary for the perfect enjoyment of the territory, and rights of 
property in them only as acquired through rights of property 
in the banks. Thus, Vattel (i., § 266 :) " When a nation 
takes possession of a country bounded by a river, she is con- 
sidered as appropriating to herself the river also : for the utility 
of a river is too great to admit of a supposition that the nation 
did not intend to reserve it for itself. Consequently, the na- 
tion that first established her dominion on one of the banks of 
the river is considered as being the first possessor of all that 
part of the river which bounds her territory. Where it is a 
question of a very broad river, this presumption admits not of 
a doubt, so far at least as relates to a part of the river's 
breadth : and the strength of the presumption increases or 
diminishes in an inverse ratio with the breadth of a river ; for 
the narrower the river is, the more do the safety and conven- 
ience of its use require that it should be subject to the empire 
and property of a nation." 

According to the Civil Law, rivers (flumina perennia,) as 
distinguished from streams (rivi,) were deemed public, which, 
like the sea shore, all might use. In an analogous manner, 
in reference to great rivers flowing into the ocean, a common 
use is presumed, unless an exclusive title can be made out, 
either from prescription or the acknowledgment of other 
states. Thus, Mr. Wheaton, in his Elements of International 
Law, (part ii., ch. iv., § 18,) in referring to the Treaty of San 
Lorenzo el Real, in 1795, by the 4th article of which his Ca- 
tholic Majesty agreed that the navigation of the Mississippi, 
from its sources to the ocean, should be free to the citizens of 
the United States, (Martens, Traites, vi., p. 142,) Spain hav- 
ing become at this time possessed of both banks of the Mis- 
sissippi at its mouth, observes : — " The right of the United 
States to participate with Spain in the navigation of the Mis- 
sissippi was rested by the American Government on the senti- 
ment, written in deep characters on the heart of man, that 
the ocean is free to all men, and its rivers to all their inhabit- 
ants." Thus, indeed, the use of a river is considered by Mr. 



196 EXTENT OF SEA COAST. 

Wheaton to be accessory to inhabitancy ; in other words, to 
follow the property in the banks. 

The principle, however, upon which the commissioner of 
the United States defended his claim to attach such an extent 
of country to the discovery of Captain Gray, was, that it was 
at once reasonable and moderate : reasonable, because there 
must be some rule for determining the local extent of a dis- 
covery, and none was more proper than taking the water- 
courses which nature had laid down, both as the fair limits of 
the country, and as indispensable to its use and value ; mod- 
erate, because the natives of Europe had often, under their 
rights of discovery, carried their claims much further. As to 
the reasonableness of the rule, if Mr. Rush meant that rivers 
were the natural and most convenient boundaries of territo- 
ries, this proposition would command a ready assent: but the 
result of the principle which he set up as to the extent of the 
discovery, would be to make the high-lands, and not the 
water-courses, the territorial limits. In respect, however, to 
the moderation of the principle, when the magnitude of the 
great rivers of America, the Amazons for example, or the 
Mississippi, is taken into consideration, the absolute modera- 
tion of the rule would be questionable. But its moderation 
was insisted upon in comparison with the extensive grants of 
the European sovereigns. The comparative moderation, how- 
ever, of a principle will not be sufficient to give it validity as 
a principle of international law, if it should be not in accord- 
ance with the practice of nations. 

But Mr. Monroe, under whose administration as President 
of the United States this principle was advanced by Mr. 
Rush, had, in the negotiations which he, in conjunction with 
Mr. Pinckney, carried on in 1805 with Spain, propounded a 
very different principle, viz. : " that whenever any European 
nation tahes possession of any extent of sea coast, that posses- 
sion is understood as extending into the interior country, to 
the sources of the rivers emptying within that coast, to all 
their branches, and the country tiiey cover, and to give it a 
right in exclusion of all other nations to the same." 

Now Vattel (i., § 260) observes, — " When a nation takes 
possession of a country, with a view to settle there, it takes 
possession of everything included in it, as lands, lakes, riv- 
ers, &;c." 

Here then the title to the river is made subordinate to the 



crozat's gbant. 197 

title to the coast, and such is the case in the charters of the 
Crown of England, which Mr. Rush alludes to as confirma- 
tory of his view. The Georgia Charter of 1732, for in- 
stance, of which he cites a portion, granted " all the lands 
and territories from the most northern stream of the Savan- 
nah river, all along the sea coast to the southward unto the 
most southern stream of the Alatamaha river, and westward 
fro?n the heads of the said rivers respectively in direct lines to 
the South Seas, and all that space, circuit, and precinct of 
land lying within the said boundaries." (Oldmixon's History 
of the British Colonies in America, i., p. 525.) 

The same principle is sanctioned in the grant of Penn- 
sylvania and of Carolina, and it is perfectly reasonable : for, 
as the discovery has taken place from the sea, the approach to 
the territory is presumed to be from the sea, so that the occu- 
pant of the sea-coast will necessarily bar the way to any 
second comer : and as he is supposed, in all these grants, to 
have settled in vacant territory, he will naturally be entitled 
to extend his settlement over the vacant district, as there will 
be no other civilised power in his way. 

Mr. Rush, in order to show that Britain was not the only 
European nation, who, in her territorial claims on this conti- 
nent, had had an eye to the rule of assuming water-courses 
to be the fittest boundaries, cited the charter of Louis XIV. to 
Crozat. But this very charter bears testimony against the 
principle advanced by Mr. Rush ; for it is undeniable that 
the Spaniards discovered the mouth of the Mississippi about 
1540 ; yet, in the face of this fact, the French king granted 
to Crozat all the territory between New Mexico on the west 
and Carolina on the east, as far as the sources of the St. 
Louis, or Mississippi, under the name of the Government of 
Louisiana, as a part of his possessions, though Spain had 
never ceded her title to France ; on the authority, according 
to Messrs. Pinckney and Monroe, of the discovery made by 
the French of the upper part of the river, as low down as the 
Arkansas in 1673, and to its mouth in 1680, and of a settle- 
ment upon the sea coast in the bay of St. Bernard, by La 
Salle, in 1685. (British and Foreign State Papers, 1817-18, 
p. 327.) It was in reference to this settlement that the prin- 
ciple of the possession of the coast entitling to the possession 
of the interior country, had been propounded to Spain on the 
part of the United States. 

But if we examine this principle in its application, we shall 



198 THE COLUMBIA RIVER. 

find it lead to very great inconveniences. In the case of the 
Cokimbia River itself, Mr. Rush claimed the whole of the 
northwest coast, as far north as the 51st parallel of north lati- 
tude, because the north branch of the river rises in that lati- 
tude. But the mouth of Frazer's River is in 49^ N.L., so 
that the discoverer of the mouth of Frazer's River would be 
entitled to the coast above the 49th parallel, unless Mr. Green- 
how means to confine the application of his principle to what 
is strictly the valley of the river, and this would be to make 
the headlands, as before remarked, the lines of territorial de- 
marcation. This certainly would be an intelligible rule, whilst 
any other interpretation of his meaning would lead to an 
endless conflict of titles. For otherwise, as observed, the dis- 
coverer of the mouth of Frazer's River would clash with the 
discoverer of the mouth of the Columbia River, as Frazer's 
River extends from 54° 20' to 49°, and the discoverer of the 
Salmon River, which rises in about 53°, and, after pursuing a 
northward course, empties itself into the sea a little below 54°, 
would clash with the discoverer of the mouth of Frazer's 
River. Mr, Rush's principle seems to assume that all the 
main rivers of a country pursue a parallel course, and that all 
the great valleys and mountain ranges are conformable, which 
however is not the case. Thus the Columbia, after following 
for some time, in a southward direction, a parallel course to 
Frazer's River, is suddenly turned aside to the west by the 
Blue Mountains, which it meets in about 46° N. L., and ar- 
riving at a gap in the Cascade range, finds its way at once to 
the sea along that parallel, instead of forming a great lake 
between the Cascade and Blue Mountains, and ultimately 
working its wav out where the Klamet at present empties 
itself into the Pacific. .Mr. Rush's principle, therefore, does 
not seem to recommend itself by its convenience ; but, as- 
suming for a moment that it is a recognised principle of in- 
ternational law, that a " nation discovering a country by en- 
tering the mojth of its principal river at the sea coast, must 
necessarily be allowed to claim and hold as great an extent 
of the interior country as was described by the course of 
the principal river and its tributary streams," the United 
States would only be entitled to the valley of the Columbia 
River, to the country watered by the river itself, and its tribu- 
taries : it could not claim to come across the Cascade range 
on the northern side of the Columbia, to cross the highlands 
which turn ofT the waters on their eastern side into the Co- 



DERIVATIVE TITLE OP THE UNITED STATES. 199 

lumbia, and on their western side into Admiralty Inlet ; yet, 
by virtue of the first entrance by Gray of the mouth of the 
Columbia River, the United States claim, " in their own 
right, and under their absolute and exclusive sovereignty and 
dominion, the whole of the country west of the Rocky Moun- 
tains, from the 42d to at least as high up as the 51st degree 
of north latitude." 

Such were the grounds on which the original title of the 
United States was set up ; her derivative title on this occa- 
sion was founded upon the cession of the title of Spain by 
the Treaty of Washington. In support of the Spanish title, 
Mr. Rush alleged that " Russia had acknowledged it in 1790, 
as the State Papers of the Nootka Sound controversy would 
show. But the memorial of the Court of Spain simply states, 
that in reply to the remonstrance of Spain against the en- 
croachments of Russian navigators within the limits of Span- 
ish America (hmits situated within Prince William's Strait,) 
Russia declared " that she had given orders that her subjects 
should make no settlement in places belonging to other 
Powers, and that if those orders had been violated, and any 
had been made in Spanish America, she desired the King 
would put a stop to them in a friendly manner." (Annual 
Register, 1790, p. 295.) But Russia did not acknowledge 
the limits of Spanish America, as set up by Spain ; on the 
contrary, we find M. de Poletica, the Russian minister at 
Washington, in his letter to Mr. Adams of the 28th February 
1822, distinctly asserting that Russian navigators had pushed 
their discoveries as far south as the forty-ninth degree of 
north latitude in 1741, and that in 1789 there were Russian 
colonies in Vancouver's island, which the Spanish authorities 
did not disturb, and that Vancouver found a Russian estab- 
lishment in the Bay of Koniac. (British and Foreign State 
Papers 1822-23.) Vancouver himself states, that he found 
a settlement of about one hundred Russians at Port Etches, 
on the eastern side of Prince William's Sound, and M. de 
Poletica, in his negotiations with Mr. Adams, maintained the 
authenticity of the statement in the two official letters pre- 
served in the Archives of the Marine at Paris, which report 
that in 1789 Captain Haro, in the Spanish packet St. Charles, 
found a Russian settlement in the latitude of 4H° and 49°, 
(State Papers, 1825-26, p. 500.) Fleurieu, the French 
hydrographer, considers these numbers to be erroneous, and 
that 58° and 59° ought to be read ; but he gives no other 



200 RUSSIAN AMERICAN COMPANY. 

reason llian that the English traders had fully ascertained 
that the Russians had no establishment to the south of 
Nootka Sound, which is between 49 and 50 degrees. So 
far, at least, were the Russians from practically recognis- 
ing the title of Spain up to 60° north latitude, that in 1799 
the Emperor Paul granted to the Russian American Com- 
pany the exclusive enjoyment of the north-west coast as 
far soutii as 65° north lat., in virtue of the discovery of it 
by Russian navigators, and authorised them to extend their 
discoveries to the south of 55°, and to occupy all such terri- 
tories as should not have been previously occupied and placed 
under subjection by any other nation, (Greenhow, p. IVSS.) 
It was further urged by Mr. Rush, that Spain had expressly 
asserted in 1790, that her territories extended as far as the 
60th degree of north latitude ; and that she had always main- 
tained her possessions entire, notwithstanding attempted en- 
croachments upon them. This, however, was not admitted 
by the British Minister at the Court of Madrid : moreover, it 
was by implication denied in the very first article of the 
treaty, by which it was stipulated that the buildings and 
tracts of land on the north-west coast of America, or on is- 
lands adjacent to the continent, of which the subjects of his 
Britannic Majesty had been dispossessed about the middle of 
April, 1789, by the Spaniards, should be restored to the said 
British subjects. Again, it was contended by Mr. Rush, that 
" any claim on the part of Great Britain, under the voyage of 
Captain Cook, was sufficiently superseded (passing by every 
thing else) by the Journal of the Spanish expedition from San 
Bias, in 1775, kept by Don Antonio Maurelle, and published 
by Daincs Barrington, a British author," in his Miscellanies. 
It is, however, quite a novel view of the law of nations, that 
a clandestine discovery should be set up to supersede a patent 
discovery, notified to all the world by the authoritative publi- 
cation of the facts. Thus Lord Stowell, in the case of the 
Fama (5 Robinson's Reports, 115,) says, "In newly-discov- 
ered countries, where a title is meant to be established for the 
first time, some act of possession is usually done, and pro- 
claimed as a notification of the fact. In a similar manner, in 
the case of derivative title, it is a recognised rule of interna- 
tional law, that sovereignty does not pass by the mere words 
of a treaty, without actual delivery. When stipulations of 
treaties," observes Lord Stowell, " for ceding particular coun- 
tries are to be carried into execution, solemn instruments of 



CONVENTION OF THE ESCURIAL. 201 

cession are drawn up, and adequate powers Rxe forinally given 
to the persons by whom the actual deHvery is to be made. In 
modern times more especially, such a proceeding is become 
almost a matter of necessity, with regard to the territorial 
establishments of the states of Europe in the New World. 
The treaties by which they are affected may not be known 
to them for many months after they are made. Many arti- 
cles must remain executory only, and not executed till carried 
into effect ; and until that is done by some public act, the for- 
mer sovereignty must remain. In illustration of the practice 
of nations being in accordance with this principle, that emi- 
nent judge cited the instances of the cession of Nova Scotia 
to France in 1667, of Louisiana to Spain in 1762, and of East 
Florida to Spain in 1803, in all of which cases the sove- 
reignty was held not to have passed by the treaty, but by a 
subsequent formal and public act of notification. Claims of 
territory are claims of a most sacred nature, and, as the case 
of vacant lands, a claim of discovery by one nation is to 
supersede and extinguish thence-forward the rights of all other 
nations to take possession of the country as vacant, the reason 
of the thing requires that the newly-acquired character of the 
country should be indicated by some public act. Thus Mr. 
Greenhow (p. 116) observes, that the Government of Spain, 
by its silence as to the results of the expedition of Perez in 
1744, deprived itself " of the means of establishing, beyond 
question, his claim to the discovery of Nootka Sound, which 
is now, by general consent, assigned to Captain Cook." 

In this conference, the Convention of the Escurial, or, as it 
was termed, the Nootka Sound Convention, was introduced 
by Mr. Rush, in accordance with the express instructions of 
the United States Government. Mr. Greenhow seems to 
consider that this was an impolitic step on the part of the 
United States, as they thereby admitted it to be a subsisting 
treaty. Mr. Rush certainly maintained that the convention 
contained recognitions of rights, such as the exclusive colonial 
rights of Spain, but he further contended that, " whilst, by it, 
the nations of Europe generally were allowed to make settle- 
ments on that coast, it was only for the purposes of the trade 
with the natives, thereby excluding the right of any exclusive 
or colonial establishments for other purposes." To the same 
purport Mr. Greenhow (p. 340) in a note says, " The princi- 
ples settled by the Nootka Sound Convention were : — 

'* 1st. That the rights of fishing in the South Seas ; of 



202 MEMORIAL OF SPAIN. 

tradinfr with the natives of the north-west coast of America ; 
and of maling setUcmenis on the coast itself^ for the purposes 
of that trade, north of the actual settlements of Spain, were 
common to all the European nations, and of course to the 
United States." 

This view, however, of the purport of the Convention of 
the Escurial, falls short of the full bearing of the 3rd article, 
which is the one alluded to ; by which it was agreed, " that 
their respective subjects shall not be disturbed or molested, 
either in navigating or carrying on their fisheries in the Pa- 
cific Ocean, or the South Seas, or in landing on the coasts of 
those seas, in places not already occupied, for the purpose of 
carrying on their commerce with the natives of the country, 
or of jnaking settlements there." There is no restriction here 
as to the object of the settlement : on the contrary, the 
making settlements is specified as distinct from the landing 
on the coast for the purposes of trade. It is obvious that, if 
the intention of the framers of the convention had been such 
as asserted by Mr. Rush, they would have worded the article 
otherwise, viz., " or in landing on the coasts of those seas, or 
in making settlements there, in places not already occupied, 
for the purpose of carrying on their commerce with the natives 
of the country." The argument, therefore, advanced by Mr. 
Rush, must, upon the face of the words of it, be held to give 
an imperfect view of the rights mutually acknowledged by the 
Treaty of the Escurial. 

But the meaning of the word " settlement'* in the treaty 
will be obvious, if either the antecedent facts, or the antece- 
dent negotiations, are regarded. In the memorial of the 
Court of Spain [Annual Register, 1790, p. 295,] it is stated, 
that before the visit of Martinez to Nootka, Spain did not 
know that the English had endeavoured to make settlements 
on the northern parts of the Southern Ocean, though she 
had been aware of trespasses made by the English on some 
of the islands of those coasts. Martinez, on arriving at 
Nootka, had found two American vessels, [the Columbia and 
Washington,] but as it appeared from their papers that they 
were driven there by distress, and only came in there to refit, 
he permitted them to proceed upon their voyage. 

" He also found there the Iphigenia from Macao, under 
Portuguese colours, which had a passport from the Governor ; 
and though he [the captain] came manifestly with a view to 
trade there, yet the Spanish Admiral, when he saw his in- 



colnett's instructions. 203 

structions, gave him leave to depart, upon his signing an 
engagement to pay the value of the vessel, should the Gov- 
ernment of Mexico declare it a lawful prize. 

" With this vessel there came a second [the North-west 
America,] which the Admiral detained and a few days after 
a third, named the Argonaut, from the above-mentioned 
place. The captain [Colnett] of this latter was an Eng- 
lishman. He came not only to trade, but brought every 
thing with him proper to form a settlement there and to fortify 
it. This, notwithstanding the remonstrances of the Spanish 
Admiral, he persevered in, and was detained, together with 
his vessel. 

" After him came a fourth English vessel, named the Prin- 
cess Royal, and evidently ybr the same purposes. She like- 
wise was detained, and sent into Port St. Bias, where the 
pilot of the Argonaut made away with himself." 

What these purposes were, is more fully shown from the 
letter of instructions which Capt. Colnett carried with him, 
and which is to be found in the Appendix to Meares' Voyages, 
having been annexed to Meares' Memorial. 

*' In planning a factory on the coast of America, we look 
to a solid establishment, and not to one that is to be aban- 
doned at pleasure. We authorise you to fix it at the most 
convenient station, only to place your colony in peace and 
security, and fully protected from the fear of the smallest 
sinister accident. The object of a port of this kind is to 
draw the Indians to it, to lay up the small vessels in the 
winter season, to build, and for other commercial purposes. 
When this point is effected, different trading houses will be 
established at stations, that your knowledge of the coast and 
its commerce point out to be most advantageous." 

That the avowed object of Capt. Colnett's expedition was 
in conformity with these instructions, is confirmed by the 
letter which Gray, the captain of the Washington, and Ingra- 
ham, the mate of the Columbia, both of them citizens of the 
United States, 'addressed to the Spanish commandant from 
Nootka Sound in August 'J, 1792, and which Mr. Greenhow 
has published in his Appendix [p. 416] — " It seems Captain 
Meares, with some other Englishmen at Macao, had con- 
cluded to erect a fort and settle a colony in Nootka Sound ; 
from what authority we cannot say. However, on the arri- 
val of the Argonaut, we heard Captain Colnett inform the 
Spanish commodore he had come for that purpose, and to hoist 



204 AUTHORIZED SPANISH ACCOUNT. 

the British flag, take formal possession, &;c. ; to which the 
commodore answered, he had taken possession already in the 
name of his Catholic Majesty ; on which Capt. Colnett 
asked, if he would be prevented from building a house in the 
port. The commodore, mistaking his meaning, answered 
him he was at liberty to erect a tent, get wood and water, d:c., 
after which, he was at liberty to depart when he pleased ; but 
Capt. Colnett said, that was not what he wanted, but to build 
a block-house, erect a fort, and settle a colony for the Crown 
of Great Britain. Don Estevan Jose Martinez answered. No ; 
that in doing that, he should violate the orders of his king, 
run a risk of losing his commission, and not only that, but it 
would be relinquishing the Spaniards^ claiiti to the coast ; 
besides, Don Martinez observed, the vessels did not belong to 
the King, nor was he intrusted with powers to transact such 
public business. On which Capt. Colnett answered, he was 
a king's officer : but Don Estevan replied, his being in the 
navy was of no consequence in the business." 

The authorised Spanish account in the Introduction of the 
Voyage of Galiano and Valdes [p. cvii.] is in perfect har- 
mony with the contemporaneous American statement. Mr. 
Greenhow has quoted a portion of it in a note to his work, 
[p. 197,] which may be referred to more conveniently than 
the Spanish original, of which the following is a translation : — 
*' There entered the same port, on the 2d of July, the English 
packet-boat Argonaut, despatched from Macao by the English 
Company. Her captain, James Colnett, was furnished with 
a license from the King of England, authorising him [iba 
autorizado con ordenes del Rey] to take possession of the 
Port of Nootka, to fortify himself in it, and to establish a 
factory for storing the skins of the sea-otter, and to preclude 
other nations from engaging in that trade, with which object 
he was to build a large ship and a schooner. So manifest an 
infringement of territorial rights led to an obstinate contest 
between the Spanish commandant and the English captain, 
which extended to Europe, and alarmed the two Powers, 
threatening them for some time with war and devastation, 
the fatal results of discord. Thus a dispute about the posses- 
sion of a narrow territory, inhabited only by wretched Indians, 
and distant six thousand navigable leagues from Europe, 
threatened to produce the most disastrous consequences to 
the whole world, the invariable result, when the ambition or 



SETTLEMENT EQUIVALENT TO COLOTfT. 205 

vanity of nations intervenes, and prudence and moderation 
are wanting in contesting rights of property." 

Spain, at the commencement of the negotiations, expressly 
S'equired through her ambassador at the Court of London, on 
February 10, 1790, " that the parties who had planned these 
expeditions should be punished, in order to deter others^rowi 
making settl€?nents on territories occupied and frequented by 
the Spaniards for a number of years." Great Britain, in 
undertaking that her subjects should not act against the just 
and acknowledged rights of Spain, maintained for them an 
indisputable right to the enjoyment of a free and uninterrupt- 
ed navigation, commerce, and fishery, and to the possession 
of such establishments as they should form with the consent 
of the natives of the country, not previously occupied by any 
of the European nations. The v/ord " establishment" here 
made use of is synonymous with "settlement,'" etahlissement 
being the expression in the French version of the treaty 
wherever settlement occurs in the English version. Both 
these terms have a recognised meaning in the language of 
treaties, of a far wider extent than that to which Mr. Rush 
sought to limit the language of the Convention of the Escu- 
rial. In the convention itself the word " settlement" is 
applied, in the 4th article, to the Spanish colonies ; in the 
oth, it is applied to the parts of the coast occupied by the 
subjects of either Power since 1789, or hereafter to be 
occupied ; in the 6th, to the parts of the coast which the 
subjects of both Powers were forbidden to occupy. There is 
nothing in the context to warrant the supposition that the 
usual meaning was not to be attached to the word *' settle- 
ment" on this occasion, paraely, a territorial settlement, such 
as is contemplated in the 3rd article of the Treaty of 1783 : 
*' and that the American fishermen shall have liberty to dry 
and cure fish in any of the unsettled bays, harbours, and 
creeks of Nova Scotia, Magdalen Islands, so long as the 
same shall remain unsettled : but so soon as the same, or 
either of them, shall be settled, it shall not be lawful for the 
said fishermen to dry or cure fish at such settlement without a 
previous agreement with the inhabitants, proprietors^ or poS' 
sessors of the ground. 

In the same manner, during the negotiations of 1818, the 
settlement at the mouth of the Columbia River was the term 
applied by Mr, Rush to Astoria. During the discussions 

10 



!06 LANGUAGE OF CHARTERS AND TREaTIEST. 

between Spain and the United States prior to the Florida 
Treaty, the settlement in the Bay of St. Bernard, is the 
appellation given to the French colony of La Salle ; and in 
Crozat's grant the word etahlissemens is similarly employed. 
That " settlement" is not the received expression in the lan- 
guage of diplomatists for temporary trading stations, may be 
inferred from a single instance in the Treaty of 1794, by the 
second article of which it was provided, — " the United States, 
in the mean time, at their discretion extending their settlC' 
ments [leurs etahlissemens] to any post wiihin the said boun- 
dary line, except within the precincts or jifrisdiction o^ any o^ 
the said posts. AH settJers and trcfders within the said posts 
[tons les colons et commercans olabiis dans I'enceinte et 
la jurisdiction des dites postes] shall continue to enjoy unmo- 
lested all their property of every kind, and shall be protected 
therein." 

One instance more will suffice. Treaties must be construed 
in accordance with the received and ordinary meaning of the 
language, unless otherwise specified, especially when it is 
sought to attach an unusual sense to any particular term, 
which sense is ordinarily expressed by some other well-known 
term. Thus, the 11th article of the Treaty of Paris serves 
to show, that a station exclusively for the purposes of trade 
with the natives is not termed a settlement, or etahlissement, 
but a factory, or comptoir. " In the East Indies Great Bri- 
tain shall restore to France, in the conditions they are now in, 
the different factories [les diflerens comptoirs] which that 
crown possessed, as well on the coast of Coromandel and 
Orissa as on that of Malabar, as also Bengal, at the beginning 
of the year 1740." [Jenkinson's Collection of Treaties, v.ol. 
ii., p. 185 ; Martens' Traites, i., p. 112.] 

In remarkable contrast to this we find in the convention of 
commerce between Great Britain and the United States, 
signed at London, July 3, 1815, the following words in the 
third article : — " His Britannic Majesty agrees that the vessels 
of the United States of America shall be admitted and hospi- 
tably received at the principal settlements of the British domin- 
ions in the East Indies, viz., Calcutta, Madras, Bombay, and 
Prince of Wales' Island, and that the citizens of the said Unit- 
ed States may freely carry on trade between the said princi- 
pal settlements and the said United States." In this latter 
case it is no longer trading posts, but territorial establishments 
which are spoken of, and the word settlements is distinctively 
ftptplied to them. 



207 



CHAPTER XVI. 

NEGOTIATIONS BETWEEN THE UNITED STATES AND GREAT 
BRITAIN IN 1826-27. 

Revival of Negotiations. — Written Statements of respective Claims. — 
The United States. — Great Britain. — Rights supposed to be derived 
from the Acquisition of Louisiana. — JefFerys' French America. — Cession 
of Canada. — The Illinois Country. — Treaty of Utrecht. — Treaty of 
Paris. — French Maps. — Charters. — Declaration of Court of France in 
1761, as to respective Limits of Canada and Louisiana. — Contiguity of 
Territory. — Hudson's Bay Territories. — Atlantic Colonies. — Cession by 
France of the left Bank of the Mississippi. — Mr. Gallatin's Doctrine of 
Contiguity. — Assumptions not admissible. — Claim to an exclusive Title 
by Contiguity. — Argument from Numbers. — Derivative Title from 
Spain. — Meaning of the Word " Settlement" in the Treaty of the Es- 
curial. — Mr. Gallatin's Doctrine respecting " Factories." — Intermixed 
Settlements not incompatible with distinct Jurisdiction — The Conven- 
tion contained a mutual Recognition of Rights. — General Law of Na. 
tions may be appealed to as supplementary to the Treaty. — Priority of 
Settlement. — Vattel. — Territory in use never granted for the purpose 
of making Settlements — Treaty of Paris. — Usufructuary Right. — Set. 
tlements not to be disturbed. — Territory in chief not reserved. — Con- 
vention of 1827. 

The subject of a definitive arrangement of the respective 
claims of the two nations to the country west of the Rocky- 
Mountains, the sovereignty over which had been placed in 
abeyance for ten years by the Convention of 1818, was once 
more revived in 1826, on the arrival in London of Mr. Galla- 
tin, with full powers from the United States to resume the 
discussion. The British commissioners renewed their former 
proposal of a boundary line drawn along the 49th parallel 
from the Rocky Mountains to M'Gillivray's River, the north- 
eastern branch of the Columbia, and thence along that river 
to the Pacific Ocean, and subsequently " tendered in the spirit 
of accommodation the addition of a detached territory on the 
north side of the river, extending from Bulfinch's (Gray's or 
Whidbey's) Harbour on the Pacific, to Hood's Canal on the 
Straits of Fuca. Mr. Gallatin, on his part, confined himself 
to the previous offer of the 49th parallel to the Pacific, with 
the free navigation to the sea of such branches of the Colum- 
bia as the line should cross at points from which they are 



208 MR. Gallatin's statement. 

navigable by boats. The claims of the two nations were on 
this occasion formally set forth in written statements, and 
annexed to the protocol of the sixth and seventh conferences 
respectively. They were published with President Adams's 
Message to Congress of December 12, 1827, and are both 
inserted in full in the second edition of Mr. Greenhow's His- 
tory, lately published. The British statement alone was 
published in his first edition, but the United States' counter- 
statement, a very able paper, which was a great desideratum, 
has been annexed to the second edition. 

It is much to be regretted that so interesting a collection of 
state papers as the documents of Congress contain, are almost 
inaccessible to the European reader, since a complete collec- 
tion is not to be met with in any of our great public libraries 
in England or France — those of the British Museum, for ex- 
ample, and of the Chamber of Deputies, having been in vain 
consulted for this purpose. It was intended to annex both the 
written statements on this occasion in an Appendix to the 
present work, but the recent publication of the negotiations 
of 1844-5, has rendered this step unnecessary. 

On this occasion Mr. Gallatin grounded the claims of the 
United States — first of all upon their acquisition of Louisiana, 
as constituting as strong a claim to the westwardly extension 
of that province over the contiguous vacant territory, and to 
the occupation and sovereignty of the country as far as the 
Pacific Ocean ; and, secondly, on the several discoveries of 
the Spanish and American navigators. These distinct titles, 
it was maintained, " Though in different hands, they would 
conflict with each other, being now united in the same Power, 
supported each other. The possessors of Louisiana might 
have contended, on the ground of contiguity, for the adjacent 
territory on the Pacific Ocean, with the discoveries of the 
coast and of its main rivers. The several discoveries of the 
Spanish and American navigators might separately have been 
considered as so many steps in the jirogress of discovery^ and 
giving only imperfect claims to each party. All these various 
claims, from whatever consideration derived, are now brought 
united against the pretensions of any other nation." 

" These united claims," it was urged, " established a 
stronger title to the country above described, and along the 
coast as far north, at least, as the 49th parallel of latitude, 
than has ever, at any former time, been asserted by any na- 
tion to vacant territory." 



ACQUISITION OF LOUISIANA. 209 

The British commissioners, Messrs. Huskisson and Adding- 
ton, on their part, maintained that the titles of the United 
States, if attempted to be combined, destroyed each other — 
if urged singly, were imperfect titles. Great Britain claimed 
no exclusive sovereignty over any portion of the territory. As 
for any exclusive Spanish title, that was definitively set at 
rest by the Convention of Nootka, and the United States ne- 
cessarily succeeded to the limitations by which Spain herself 
was bound. In respect to the French title, Louisiana never 
extended across the Rocky Mountains westward, unless some 
tributary of the Mississippi crossed them from east to west ; 
but assuming that it did even extend to the Pacific, it belonged 
to Spain equally with the Californias, in 1790, when she 
signed the Convention of Nootka ; and also subsequently, in 
1792, when Gray first entered the mouth of the Columbia. If 
then Louisiana embraced the country west of the Rocky 
Mountains, to the south of 49°, it must have embraced the 
Columbia itself, and consequently Gray's discovery must have 
been made in a country avowedly already appropriated to 
Spain ; and if so appropriated, necessarily included, with all 
other Spanish possessions and claims in that quarter, in the 
stipulations of the Nootka Convention." 

As the rights supposed to be derived from the acquisition 
of Louisiana were on this occasion for the first time set up 
by the United States, and formed a leading topic in Mr. Gal- 
latin's counter-statement, their novelty, as well as the impor- 
tant consequences attempted to be deduced from them, entitled 
them to precedence in the order of inquiry over the derivative 
Spanish title, and the original title of the United States, the 
more so, as the two latter have been already briefly examined. 
It would seem that Mr. Gallatin did not attempt to extend the 
boundaries of the colony of Louisiana, beyond the valley of 
the Mississippi and its tributaries. Crozat's grant would of 
itself be evidence against any extension of the French title in 
this respect. But he contended, that " by referring to the 
most authentic French maps. New France was made to ex- 
tend over the territory drained by rivers entering into the 
South Seas. The claim to a westwardly extension to those 
seas was thus early asserted, as part, not of Louisiana, but of 
New France. The king had reserved to himself, in Crozat's 
grant, the right of enlarging the government of Louisiana. 
This was done by an ordinance dated in the year 1717, which 
annexed the Illinois to it, and from that time, the province 



210 NEW FRANCE. 

extended as far as the most northern limit of the French pos- 
sessions in North America, and thereby west of Canada or 
New France. The settlement of that northern limit still fur- 
ther strengthens the claim of the United States to the territory 
west of the Rocky Mountains," 

The meaning of this passage is rather obscure, but it seems 
to imply, that l)y the annexation of the Illinois the province of 
Louisiana w^as extended to the most northern limit of the 
French possessions in North America, and thereby cut off the 
western portion of Canada or New France, and so conse- 
quently extended itself to the South Seas. If this be the cor- 
rect view of the argument, then it may be confidently assert- 
ed, that neither of these positions can be established. In the 
first place, Crozat's grant, on which the United States ex- 
pressly and formally relied in the negotiations with Spain, 
defined the country of Louisiana to be bounded on the west 
by New Mexico, on the east by Carolina, and northwards to 
comprise the countries along the River St. Louis (Mississippi) 
from the sea-shore to the Illinois, together with the River St. 
Philip, formerly called the Missouries River, and the St. Je- 
rome, formerly called Wabash, with all the countries, territo- 
ries, lakes in the land, and the rivers emptying directly or in- 
directly into that part of the river St. Louis. The words of 
the grant, if strictly interpreted, limit the province on both 
sides of the Mississippi to that -part from the sea-shore to the Il- 
linois, as both the Missouri and the Wabash (Ohio) unite with 
the Mississippi below the Illinois. But it seems to have been 
practically held, that Louisiana extended along the w^estern 
bank of the Mississippi to its source. Thus we find in Jef- 
ferys' History of the l^rench Dominions in America, published 
in 1760, Louisiana thus described : — " The province of Louis- 
iana, on the southern part of New France, extends, accord- 
ing to the French geographers, from the Gulf of Mexico in 
about 29° to near 45° north lat. on the western side, (the 
sources of the Mississippi being laid down in JefTerys' map in 
about 45°,) and to near 39° on the eastern, and from 86° to 
near 100° W. longitude from London. It is bounded on the 
north by Canada, on the east by the British colonies of New 
York, Pennsylvania, Maryland, Virginia, North and South 
Carolina, Georgia, and by the peninsula of Florida ; on the 
south by the Gulf of Mexico ; and lastly, on the west by New 
Mexico." This description evidently omits the Illinois, but 
the annexation of the Illinois in 1717 did not give to the pro- 



INDIAN RESERVES, 211 

vince of Louisiana the indefinite extent northward which Mr. 
Gallatin suggests, for the Marquis de Vaudreuil, in ceding the 
province of Canada to Sir J. Amherst, in 1760, according 
to his own letter, (Annual Register, 1761, p. 168,) expressly- 
described Louisiana as extending on the one side to the carry- 
ing-place of the Miamis, and on the other to the head of the 
river of the Illinois. The Illinois country itself was a limited 
district, watered by a river of that name, which had been so 
called from an Indian nation settled on its banks. This tribe 
or nation was said to have migrated from the west, along the 
banks of the Moingona, (the Riviere des Moines,) down to its 
junction with the Mississippi : it had then established itself a 
little lower down on the eastern side of the Mississippi, in an 
exceedingly fertile valley, watered by a tributary of that river, 
to which it gave its own name of IlHnois, 

The French settlement was in this district, according to 
Jefferys : its commodious situation enabled it to keep up the 
communication between Canada and Louisiana, and the fer- 
tility of the soil rendered it the granary of Louisiana. It 
may be perfectly true that Illinois was the most northern limit 
of the French possessions in North America, if by the term 
possessions is meant the territory in which they had made 
settlements ; but if the term is intended to include the terri- 
tory in which they claimed a right to found settlements, the 
statement would not be correct. 

By the Treaty of Utrecht, the British had precluded them- 
selves from passing over the limits of the territory of the Bay 
of Hudson, and all the country south of those limits would be 
considered amongst " the places appertaining to the French,'* 
in other words, would be part of New France. But the south- 
ern boundary of the Hudson's Bay territory would be much 
to the northward of the Illinois country ; the intermediate dis- 
trict, it is true, was peopled with various Indian tribes, but the 
French, as against Great Britain, by the Treaty of Utrecht, 
had an exclusive title to the country. By the Treaty of Paris 
in 1763, that title passed from France to Great Britain, and 
in pursuance of the rights so acquired by the crown of Eng- 
land, a proclamation was issued, reserving to the Indians, as 
hunting grounds, all the territories not included within the 
government of Quebec, or the limits of the territory granted 
to the Hudson's Bay Company, and enjoining all persons 
whatever, who should have seated themselves in them, to re- 
move forthwith from such settlements. (Annual Register, 



213 FRENCH MAPS. 

1763, p. 212.) It would thus appear, if New France ever e.T- 
tended across the continent of America to the Pacific Ocean, 
the portion of it north of the sources of the Mississippi, and 
of the Illinois River, passed into the hands of Great Britain, 
on the ratification of the Treaty of Paris. The claim, how- 
ever, to the westwardly extension of New France to the Pacific 
Ocean, requires some better evidence than the maps of the 
French Geographers. A map can furnish no proof of territo- 
rial title : it may illustrate a claim, but it cannot prove it. 
The proof must be derived from facts, which the law of na- 
tions recognises as founding a title to territory. Maps, as 
such, that is, when they have not had a special character at- 
tached to them by treaties, merely represent the opinions of 
the geographers who have constructed them, which opinions 
are frequently founded on fictitious or erroneous statements : 
e. g., the map of the discoveries in North America by Ph. 
Buache and J. N. de Lisle, in 1750, in which portions of the 
west coast of America were delineated in accordance with De 
Fonte's story, (supra, Ch. IV.,) and the maps of north-west 
America at the end of the seventeenth and beginning of the 
eighteenth centuries, which represent California as lately as- 
certained to be an island. An examination of the collection 
in the King's Library at the British Museum, will remove all 
scepticism on this head. Such documents are entitled, of 
themselves, to far less consideration from foreign Powers, than 
the charters of sovereigns. These, indeed, may be binding 
on the subjects of the sovereigns by their own inherent au- 
thority, but against other nations, they must be supported ex- 
pressly, on the face of them at least by some external authori- 
ty, which the law of nations acknowledges. Thus, we find 
generally the title of discovery recited in the preamble of char- 
ters ; it is, however, competent for other nations to dispute 
this title, or to dispute the extent to which the grant goes. 
The charter of Carolina and Georgia, elsewhere recited, will 
furnish a case in point. In these the grant extends westward 
to the South Seas, but this would convey no title to the set- 
tlers against the French, who barred the way to the South 
Seas by their settlements in Louisiana, and who would dis- 
pute the asserted claim, so that the charters would be inope- 
rative in their full extent. 

But when Mr. Gallatin stated, that from the ordonnance of 
1717 the province of Louisiana extended as far as the most 
northern limit of the French possessions in North America, 



FRENCH DECLARATION. 213 

and thereby west of Canada or New France, he has probably 
overlooked the words of the ultimatum of the Court of France, 
of the 5th August 1761, remitted by the Due de Choiseul to 
Mr. Stanley, the British plenipotentiary, in the course of the 
negotiations in that year after the surrender of Canada ; — 
" The King of France has, in no part of his memorial of 
propositions, affirmed that all which did not belong to Canada 
appertained to Louisiana; it is even difficult to conceive such 
an assertion could be advanced. France, on the contrary, 
demanded that the intermediate nations between Canada and 
Louisiana, as also between Virginia and Louisiana, shall be 
considered as neutral nations, independent of the sovereignty 
of the two crowns, and serve as a barrier between them." 
(Historical Memorial of the Negotiations, published at Paris 
by authority, 1761, May be referred to in Jenkinson's Coll. 
of Treaties, vol. ii.) Mr. Gallatin says elsewhere, in allud- 
ing to royal charters : — " In point of fact, the whole country 
drained by the several rivers emptying into the Atlantic 
Ocean, the mouths of which were within those charters, has 
from Hudson's Bay to Florida, and it is believed without ex- 
ception, been occupied and held by virtue of those charters. 
Not only has this principle been fully confirmed, but it has 
been notoriously enforced, much beyond the sources of the 
rivers on which the settlements were formed. The priority 
of the French settlements on the rivers flowing westwardly 
from, the Alleghany Mountains into the Mississippi, was alto- 
gether disregarded ; and the rights of the Atlantic colonies to 
extend beyond those mountains, as growing out of the conti- 
guity of territory,, and as asserted in the earliest charters, 
was effectually and successfully enforced." In reply to these 
remarks it may be observed, that the limits of the Hudson's 
Bay territory were settled by the Treaty of Utrecht, in 1713, 
those of the Atlantic colonies by the Treaty of Paris, 1763, 
and in the preliminary negotiation no allusion is any where 
made to rights founded on charters, or to rights o^ contiguity. 
On the contrary, in regard to the Hudson's Bay territories, 
the peaceable acquiescence of the Marquis de Frontenac, 
then Governor of Canada, in the settlement of the Bay of 
Hudson by the English company, was maintained to be a bar 
to any claims on the part of the French to question, at a sub- 
sequent period, the title of which the British crown asserted 
on the grounds o^ discovery. Again, in respect to the Atlan- 
tic colonies, their right to extend themselves to the banks of 

10* 



214 fRENCH CESSIONS. 

the Mississippi was never enforced against the French, "as 
growing out of the contiguity of territory, and as asserted in 
the earliest charters. On the contrary, in the negotiations 
of 1761, it was admitted by Great Britain, that in respect to 
the course of the Ohio, and the territories in those parts, the 
pretensions of the two crowns had been contentious before the 
surrender of Canada, and in respect to the nations on the east 
bank of the Mississippi, Great Britain confined herself to as- 
serting that they had been always reputed to be under her 
protection, and proposed to the French King, that " for the 
advantage of peace, he should consent to leave the interme- 
diate countries under the protection of Great Britain, and 
particularly the Cherokees, the Creeks, the Chicosaws, the 
Chactaws, and another nation, situate between the British 
settlements and the Mississippi.^' The result of these and 
subsequent negotiations was, that France, by the seventh arti- 
cle of the Treaty of Paris, agreed that the limits of the Bri- 
tish and French territories respectively should be fixed by a 
line drawn along the middle of the Mississippi, from its source 
to the River Iberville [depuis sa naissance jusqu'a la riviere 
d'Iberville,] and ceded to Great Britain all that she possessed or 
was entitled to possess, on the left bank of the Mississippi, 
with the exception of New Orleans. 

This cession by France of all that she possessed, or was 
entitled to possess, on the left bank of the River Mississippi, 
would convey to Great Britain all her title to the Illinois and 
other districts north of the Illinois country, if she possessed 
any ; but she could only possess any title to them as forming 
part of the dependencies of Canada or New France. Out of 
these, indeed, the province of Louisiana had been carved by 
the grant to Crozat in 1712, and from these the Illinois terri- 
tory had been detached in 1717, by the charter of Law's Mis- 
sissippi Company; the remainder, such as it was, had re- 
tained its original character of New France or Canada un- 
changed, as well as its original limits, such as they had been 
determined to be, either by special commissioners, in pursu- 
ance of the provisions of the Treaty of Utrecht, or by an 
understanding between the crowns of France and Great Bri- 
tain. If therefore the French had any possessions in America 
north of the sources of the Mississippi, as Louisiana did not 
extend further north than those sources, they must have been 
part of the original province of Canada, and have been ceded 
to Great Britain with Canada and all her dependencies. Tho 



©OCTRINE OP CONTIGUIXr, 215 

western boundary of Louisiana was never attempted to be 
extended by the French beyond the limits of Crozat's grant, 
by which Louisiana was expressly defined to be bounded by 
New Mexico on the w^est, and impliedly by the head- waters 
of the Missouri river. 

" The actual possession," Mr. Gallatin maintained, " and 
populous settlements of the valley of the Mississippi, including 
Louisiana, and now under one sovereignty, constitute a strong 
claim to the westwardly extension of that province over the 
contiguous vacant territory, and to the occupation and sove- 
reignty of the country as far as the Pacific Ocean. If some 
trading factories on the shores of Hudson's Bay have been 
considered by Great Britain as giving an exclusive right of 
occupancy as far as the Rocky 5lountains ; if the infant set- 
tlements on the more southern Atlantic shores justified a 
claim thence to the South Seas, and which was actually en- 
forced to the Mississippi, that of the millions already within 
the reach of those seas cannot consistently be resisted. For it 
will not be denied that the extent of contiguous territory, to 
which an actual settlement gives a prior right, must depend, 
in a considerable degree, on the magnitude and population of 
that settlement, and on the facility with which the vacant 
adjoining land may, within a short time, be occupied, settled, 
and cultivated by such population, as compared with the pro- 
bability of its being thus occupied and settled from another 
quarter." 

In examining Mr. Gallatin's argument in the above passage, 
it will be seen that he assumes, as the foundation of it, two 
suppositions as to the Hudson's Bay factories and the settle- 
ments on the Atlantic shores, which are not admissible. 
Great Britain never considered her right of occupancy up to 
the Rocky Mountains to rest upon the fact of her having es- 
tablished factories on the shores of the Bay of Hudson, i. e., 
upon her title by mere settlement, but upon her title by dis- 
covery confirmed by settlements, in which the French nation, 
her only civilised neighbour, acquiesced, and which they sub- 
sequently recognised by treaty : and in regard to the infant 
settlements on the Atlantic shores, they were planted there 
either by virtue of discovery, as in the case of Virginia, or 
else upon the plea of the territory "not yet being cultivated 
or planted, and only inhabited by some barbarous people," as 
in the case of the Carolinas, which, though occupied succes- 
sively for a time by Spanish and by French settlers, had been 



216 EXCLUSIVE TITLE BY CONTIGUITY. 

abandoned by all European nations from the year 1567 till 
1663, when Charles II. granted letters patent to the Earl of 
Clarendon and seven others, asserting a title to it by virtue 
of the discoveries of Sebastian Cabot, and its abandonment 
by other Powers. If, therefore, the British crown asserted a 
right of extending its settlements beyond the heads of the 
rivers emptying themselves into the Atlantic to the South 
Seas, it was not by virtue of its infant settlements, but by 
the same title, whatever it might be, which, according to 
the practice of nations, would authorise it to make those 
settlements, since the claim was asserted in the very char- 
ters which empowered the settlement to be made. But 
the settlement was limited to lands "not yet cultivated or 
planted," in other words, to vacant territory. Was the claim 
then actually enforced by the British to the Mississippi ? 
The history of the Treaty of Paris furnishes a negative 
answer to the question. The claim, indeed, which Mr. 
Gallatin attempts to set up, is to an exclusive title by conti- 
guity. But such a title can only be founded on necessity, 
when the law of self-preservation is paramount to all other 
considerations. Convenience alone will not establish an 
absolute title, though it may found a conditional title, subject 
to the acquiescence of other States : but the reason which Mr. 
Gallatin alleged in support of the title by contiguity ; namely, 
the facility with which the vacant territory would be occupied 
by the teeming population of the United States, is but a dis- 
guised appeal to the principle of the vis major, and strii^es at 
the root of the fundamental axiom of international law, that 
all nations are upon a footing of perfect equality as to their 
obligations and rights. " Power or weakness," observes 
Vattel, "does not in this respect produce any difference. A 
dwarf is as much a man as a giant : a small republic is no 
less a sovereign state than the most powerful kingdom ;" so 
that every argument which rests on the grounds that the mil- 
lions already within reach of the Pacific Ocean, entitle the 
United States by their numbers to the occupation and sove- 
reignty of the country, to the exclusion of Great Britain, is out 
of place where questions of greater right, and not of greater 
interest, are under discussion. It should however not be for- 
gotten, in discussing the probability of the Oregon Territory 
being occupied from any other quarter than the United States, 
that British subjects are restricted by the charter of the Hud- 
son's Bay Company from settling there, it being declared in 



TRADING FACTORIES, Sit 

that charter, "that no British subjects, other than and except 
the said Governor and Company, and their successors, and 
the persons authorised to carry on exclusive trade by them, 
shall trade with the Indians" within such parts of North 
America as are " to the northward and to the westward of 
the lands and territories belonging to the United States of 
America." 

In respect to the derivative title from Spain, Mr. Gallatin, 
in admitting the Convention of the Escurial to be now in 
force, as being of a commercial nature, and therefore re- 
newed, in common with all the treaties of commerce existing 
previously to the year 1796, between Spain and Great Britain, 
by the treaty signed at Madrid on August 28, 1814, (Martens' 
Traites, Nouveau Recueil, iv., p. 122,) contended in the first 
place that the word " settlement " was used in the third and 
fifth articles of the convention, in the narrower sense which 
Mr. Rush had endeavoured to attach to it in the negotiations 
of 1824, namely, as "connected with the commerce to be 
carried on with the natives ;" and, secondly, that if the word 
"settlement" was employed in its most unlimited sense, still 
that the provisions of the convention had no connection with 
an ultimate partition of the country for the purposes of per- 
manent colonisation. The truth of the last observation, to a 
certain extent, is self-evident, from the fact of the ultimate 
partition of the country being still the subject of discussion ; 
but in respect to the word " settlement," some objections to 
the attempt to narrow its meaning have been already stated, 
and may be referred to above, (p. 291-297.) A few further 
observations, however, may not be superfluous. Mr. Galla- 
tin, in another part of his counter-statement says, " It is also 
believed, that mere factories, established solely for the pur- 
pose of trafficking Avith the natives, and without any view to 
cultivation and jyermanent settlement^ cannot, of themselves, 
and unsupported by any other consideration, give any better 
title to dominion and absolute sovereignty, than similar estab- 
lishments made in a civilised country." 

If we admit, for the sake of the argument, that temporary 
trading stations, erected without any view to cultivation and 
permanent settlement, cannot of themselves establish a title 
to exclusive dominion and sovereignty, this very fact alone 
would be conclusive to show, from the provisions of the fifth 
article, that such trading stations were not intended by the 
word "settlement" in the Treaty of the Escurial. The set- 



218 PERMANENT SETTLEMENTS. 

tlements there contemplated were only to be made in places 
not already occupied, and further, " in all places wherever 
the subjects of either shall hare made settlements since the 
month of April 1789, or shall hereafter make any, the subjects 
of the other shall have free access, and shall carry on their 
trade without any disturbance or molestation." LFnless the 
settlements here alluded to would have been considered to 
give a title of exclusive sovereignty by the recognised law of 
nations to the party which had formed them, if not otherwise 
specified, this provision would have been not merely uncalled 
for, but on the well-known principle of " expressio unius est 
exclusio alterius," would have tended to narrow rather than 
to enlarge the rights of the other party. The reason, how- 
ever, of this " special provision " will be obvious, when it is 
called to mind that both Spain and Great Britain carefully 
excluded foreign Powers from all trade with their colonies, 
and that Spain had asserted in the preliminary negotiations a 
right of " sovereignty, navigation, and exclusive commerce to 
the continent and islands of the South Sea," and had also 
maintained, that " although she might not have establishments 
or colonies planted upon the coasts or in the ports in dispute, 
it did not follow that such coast or port did not belong to her." 
Unless therefore some such provision had been introduced 
into the treaty, the subsequent settlements on the north-west 
coast would have been closed against all foreign traders, in 
conformity to the general laws of both countries. 

But if Mr. Gallatin is justified in advancing, as a principle 
of international law, that " mere factories, established solely 
for the purpose of trafficking with the natives, and without 
any view to cultivation and permanent settlement," such as 
he alleges the trading posts of the North-west Company to 
be, cannot of themselves give a good title to dominion and 
absolute sovereignty, he cuts away from under the United 
States the ground upon which they had set up their original 
title to exclusive sovereignty. For the factory of the Pacific 
Fur Company at Astoria, on the south bank of the Columbia, 
would be, according to this view, quite as inoperative for the 
purpose of constituting a title by settlement in favour of the 
United States as that of the Hudson's Bay Company at Fort 
Vancouver, on the northern Bank, would be ineffectual for a 
similar purpose in favour of Great Britain ; and, a fortiori, 
the passing visit of a merchant ship, such as the Columbia, 
despatched solely /or the purpose of trafficking icith the natives, 



DISTINCT JURISDICTION. 219 

and not with the object of making discoveries, or with any 
authority to take possession of territory for purposes of per- 
manent settlement, could never be held entitled to the con- 
sideration which the United States claim to have attached 
to it. 

Mr. Gallatin observed that "the stipulations of the Nootka 
convention permitted promiscuous and intermixed settlements 
everywhere, and over the whole face of the country, to the 
subjects of both parties, and even declared every such settle- 
ment, made by either party, in a degree common to the other. 
Such a state of things is clearly incompatible with distinct 
jurisdiction and sovereignty. The convention therefore could 
have had no such object in view as to fix the relations of the 
contracting parties in that respect." If, however, it can be 
shown that such a state of things is not incompatihle ivith dis- 
tinct jurisdiction, the argument will fall to the ground. 

It appears then to have been decided in the United States 
Courts, that, "although the territorial line of a nation, ybr 
the pmyoses of absolute jurisdiction, may not extend beyond 
the middle of the stream, yet the right to the use of the whole 
river or bay /or the purposes of trade, navigation, and passage, 
may be common to both nations." (The Fame, 3 Mason 147, 
C. C. Maine, 1822, cited in Elliott's American Diplomatic 
Code, vol. ii.,p. 345.) 

Here then we have the principle recognised of use for the 
purposes of trade being in a degree common to both nations, 
yet such a state of things being 7iot incompatible with distinct 
jurisdiction and sovereignty. 

Still less would the fact of the convention permitting pro- 
miscuous and intermixed settlements to be made everywhere 
by the subjects of both parties be incompatible with distinct 
jurisdiction ; for, as Vattel observes (1. ii., § 93,) "it mayhap, 
pen that a nation is contented with possessing only certain 
places, or appropriating to itself certain rights in a country that 
has not an owner, without being solicitous to take possession 
of the whole country. In this case, another nation may take 
possession of what the first has neglected ; but this cannot 
be done without allowing all the rights acquired by the first 
to subsist in their full and absolute independence. In such 
cases, it is proper that regulations should be made by treaty, 
and this precaution is seldom neglected among civilised na- 
tions." 

Mr. Gallatin further continues : " On that subject (jurisdic- 



220 RECOGNITION Of RIGHTS. 

tion and sovereignty) it (the convention) established or 
changed nothing, but left the parties M'here it found them, 
and in possession of all such rights, whether derived from 
discovery, or from any other consideration, as belonged to 
each, to be urged by each, whenever the question of perma- 
nent and separate possession and sovereignty came to be dis- 
cussed between them." 

It may be perfectly correct to say that the convention " left 
the parties where it tbund them, and in possession of all such 
rights, whether derived from discovery or from any other con- 
sideration, as belonged to each;" for the very object of the 
third article was not the concession of favours, but the recog- 
nition of mutual rights. On the other hand, that it left all 
question of rights open, to be urged by each at any future 
time, as if there had been no declaration or acknowledgment 
on the subject, seems not merely to be at variance with the 
substance of the third article, but to be utterly irreconcilable 
with the preamble of the convention, which contemplates an 
amicable arrangement of the differences between the two 
Crowns, " which, setting aside all retrospective discussion of 
the rights and pretensions of the two parties, should fix their 
respective situation for the future on a basis conformable to 
their true interests, as well as to the mutual desire with which 
their said Majesties are animated, of establishing with each 
other, in every thing and in all places, the most perfect friend- 
ship, harmony, and good correspondence." 

If, indeed, Mr. Gallatin means that whenever the parties 
should find it desirable to terminate the condition o^ occupation 
in common^ it would be competent for either party to appeal 
to the general law of nations, subject to the provisions of the 
treaty, the reason of the thing at once suggests that recourse 
must be had to some general principles of law, in a case for 
which the treaty does not provide. But the general law of 
nations must only be invoked as supplementary to the special 
law recognised by the convention. By the special law of the 
treaty, the mutual right of making settlements in places not 
already occupied was acknowledged ; but the rights accruing 
to either party by virtue of such settlements, when made, 
would be determined by the general law of nations. The 
reciprocal liberty of free access and unmolested trade with 
such settlements was provided for by the fifth article ; the 
treaty, however, was silent as to the relations of the parties 
in other respects, after they should have made settlements. 



TERRITORY IN USE. 221 

These relations then would be determined by the general 
law. 

The common right of either party to make settlements in 
places not occupied was recognised by the convention. Occu- 
pation was thus declared to be the test of exclusive title, and 
"territory not occupied," was impliedly "territory without 
an owner." Priority of settlement would thus give as perfect 
a title under the special law of the convention, as discovery 
and settlement under the general law of nations. If this 
view be correct, then Vattel supplies the rule of law which 
would determine the mutual relations attendant on such set- 
tlements. " If at the same time two or more nations discover 
and take possession of an island, or any other desert land with- 
out an owner, they ought to agree between themselves, and 
make an equitable partition ; but, if they cannot agree, each 
will have the right of empire and the domain in the parts in 
which they first settled.^'' (1. ii., § 95.) 

The mutual right of the two parties to settle in places not 
)^et occupied, having thus been acknowledged by the conven- 
tion, the sovereignty was from the nature of things left in 
abeyance pending the establishing of such settlements^ but 
there was no provision in the treaty to suspend the operation 
of the general law of nations, in respect to the territorial 
rights consequent on such settlements. To negative the 
operation of the general law, it would be necessary to show 
that the dominium, utile, as distinct from the sovereignty, was 
all that accrued by such settlements. But in cases in which 
the territory in use, {dominium utile) as distinct from the ter- 
ritory in chief {dominium eminent,) has been granted by treaty, 
such a concession has never been said to be granted " for 
the purpose of making settlements," and it may be observed 
that in such cases, express reference is made to the party who 
retains the territory in chief. 

Thus in the 17th article of the Treaty of Paris, by which 
Spain granted to Great Britain a usufructuary right in the 
territory of the Bay of Honduras, it was provided : — 

" That his Britannic Majesty shall cause to be demolished 
the fortifications which his subjects shall have erected in the 
Bay of Honduras, and in other places of the territory of Spain 
in that part of the world, four months after the ratification of 
the present treaty. 

" And his Catholic Majesty shall not permit his Britannic 
Majesty's subjects or their workmen to he disturbed or mo- 



222 USUFRUCTUARY RIGHT. 

lested under any pretence whatever in the said places ^\n their 
occupation of cuttin<T, loading, and carrying away logwood ; 
and ibr this purpose they may build without hindrance, and 
occupy uithout interrupiion, the houses which are necessary 
for themselves or families. 

" And his Catholic Majesty assures to them by these arti- 
cles the full enjoyment of those advantages and powers on 
the Spanish coasts and territories, as above stipulated." 

In this case it will be seen that his Catholic Majesty 
granted to Great Britain the usufructuary right, or, according 
to the language of the Civil Law, Jus utendi, fruendi, salva 
rerum substantia, of the peculiar produce of the soil of the 
Bay of Honduras, reserving to himself the property of the 
soil, or the territory in chief. 

But on looking once more at the words of the 3d article, it 
was agreed between the two contracting parties, that " their 
respective subjects shall not be disturbed or molested either 
in navigating or carrying on their fisheries in the Pacific 
Ocean or in the South Seas, or in landing on the coasts of 
those seas, in places not already occupied, for the purpose of 
carrying on their commerce with the natives of the country, 
or of making settlements there." Now the only pretext for 
such disturbance or molestation would be the claim of territo- 
rial right or sovereignty : and that pretext being formally re- 
linquished by the stipulation not to disturb, the claim of terri- 
torial right, as founded on considerations anterior to the 
treaty, was mutually abandoned by either party. Again, the 
subjects of^ either party were declared entitled to make settle- 
ments in places not already occupied. If now there was a 
reservation of territorial right in chief by one party, then the 
families settling there, which is in effect colonising, (for the 
cultivation of the soil must be allowed them,) could not be the 
suljjects of the other party, if they settled and became domi- 
ciled there ; yet they are acknowledged to retain their cha- 
racter. Now, such as the subject is, such is the jurisdiction. 
If, for instance, the absolute and sole territory of the north- 
west coast of America, exclusive of any other Power, was 
possessed and retained by Spain, then the jurisdiction over 
all persons settling there belonged to Spain : the residents in 
that territory were the subjects of Spain jwo hdc vice, where- 
soever they were born, agreeably to the principle admitted 
all over Europe, that every man is the subject of the jurisdic- 
tion and territory in which he is domiciled. But British sub- 



CONVENTION OF 1827. 223 

jects settling in the places not already occupied on the north- 
west coast of America could not thereby be divested of the 
character of their original domicile, for it was only in such 
character that they were entitled not to be disturbed or mo- 
lested in their settlements, — it was only under the authority 
and protection of a British sovereign that they were entitled 
to set foot upon the territory. Other considerations will rea- 
dily suggest themselves, but it is unnecessary to pursue the 
subject further. 

These negotiations were brought to a close by the signa- 
ture of the Convention of 1827, by which the provisions of 
the 3d article of the Convention of 1818 were further indefi- 
nitely extended, it being competent however for either party 
to abrogate the agreement, on giving twelve months' notice 
to the other party. 



•224 



CHAPTER XVII. 



NEGOTIATIONS BETWEEN THE UNITED STATES AND GREAT 
BRITAIN IN 1844-5. 

General line of Argument on cither Side. — Original Title of the United 
States. — Nationality of a Merchant Ship.— Mr. Buchanan's Statement. 
— Mr. Rush's View. — The Practice of Nations makes a Distinction be. 
tvveen pubhc and private Vessels. — Tribunals of the United States. — 
Laws of South Carolina. — The Distinction rests on the Comity of Na- 
tions. — It is not arbitrary, at the Will of each Nation, nor can it be dis- 
turbed. — Dr. Channing on the Character of Merchant Ships. — The 
taking Possession of a vacant Country for the Purpose of Settlement, is 
an Act of Sovereignty. — Mr. Gallatin's Letter to Mr. Astor on the 
Flag. — Discoveries, as the Groundwork of Territorial Title, technical. 
— Lord Stowell. — Inchoate Acts of Sovereignty. — Vattcl. — Title by 
Discovery, the Creature of the Comity of Nations. — Gray's first enter, 
ing the Mouth of the Columbia docs not satisfy the required Conditions. 
— Heccta's Discovery, in the popular sense of the Term. — Gray's the 
first Exploration of the Mouth. — Expedition of Lewis and Clarke — 
Mr. Rush's Mis-statement in 1824, as to the Sources of the Multno- 
mah, and of Clarke's River. — Inaccuracy in [the Statements of Mr. 
Calhoun, and of Mr. Buchanan. — The Great Northern Branch of the 
Columbia not called Clarke's River by Lewis and Clarke. — Clarke's 
River supposed by them to be a Tributary of the Tacoutche-Tesse. — 
The Tacoutche-Tesse reputed to be the northernmost Branch of the 
Columbia River till 1812. — Humboldt's New Spain. — Junction of the 
Lewis with the Columbia River. — The northernmost Branch of the Co- 
lumbia first Explored by Thomson. — Lewis and Clarke did not encamp 
and winter on the north Bank of the Columbia. — Fort Clatsop on the 
south Bank. — Mr. Packenham's Counter-statement. — Settlements of 
the United States. — Mr. Calhoun's Statement. — Mr. Henry's trading 
Fort. — Failure of Captain Smith's Undertaking. — Mr. Astor's Adven- 
ture. — Astoria on the south Bank of the Columbia. — Rival Station of 
the North-west Company on the Spokan River. — Astoria not a national 

Settlement No Claim advanced to it by the United States in. the Ne. 

gotiations preceding the Florida Treaty. — Astoria transferred to the 
North-west Company by Sale. — The United States formally placed in 
possession of it in 1818. — Mr. Calhoun's Argument. — Confusion of the 
Settlement with the Territory — The Right of Possession — The Ques- 
tion at issue in 1818. — Mr. Rush did not then assert a perfect Title. — 
Mr. Buchanan now maintains an exclusive Title. — The derivative Title 
of Spain — Inconsistency of the United States Commissioners — Effect 
of the Nootka Convention. — Contrast of the Claims of the Two Gov. 
crnments.— Mr. Calhoun's Admission as to Heccta's Discovery —True 



NEGOTIATIONS OF 1844-5. 225 

Character of the original Title of the United States. — Not an exclusive 
Title. — Exclusiveness docs not admit of Degree. — The Title of Spain 
imperfect by express Convention. — No Rights granted by the Nootka 
Convention. — Mr. Buchanan's Statement. — Examination of the Argu- 
ment. — Opinions expressed in Parliament in 1790. — Mr. Pitt's Decla- 
ration. 

The unexpected publication of the correspondence between 
Mr. Pakenham, the British Minister, and Messrs. Calhoun 
and Buchanan, the Secretaries of State at Washington, re- 
quires that the more important arguments in their respective 
statements should be briefly examined, lest the present in- 
quiry should be thought incomplete. No substantially new 
topic seems to have been advanced during the negotiation, 
but the treatment of several points in the argument on either 
side was materially modified. The Commissioners of the 
United States appear on this occasion to have relied more 
immediately on the original title of the United States than on 
the derivative Spanish title which Mr. Rush first set up in 
1824, or the derivative French title which Mr. Gallatin 
brought forward in 1826. The British Minister, on the other 
hand, rested his position more decidedly on the recognition of 
the title of Great Britain by the Convention of the Escurial, 
and less on the general proof of it by discovery and settle- 
ment. 

In reference, then, to the original title of the United States, 
Mr. Calhoun, in his letter of September 3, 1844, grounded it 
on the prior discovery of the mouth of the Columbia River by 
Captain Gray, on the prior exploration of the river from its 
head- waters by Lewis and Clarke in 1805-6, on the prior 
settlement on its banks by American citizens in 1809-10, and 
by the Pacific Fur Company at Astoria in 1811, which latter 
establishment was formally restored by the British Govern- 
ment in 181S to the Government of the United States. Mr. 
Buchanan, in his letter of July 12, 1845, having briefly reca- 
pitulated these alleged facts, says : — "If the discovery of the 
mouth of a river, followed up within a reasonable time by the 
first exploration of its main channel and its branches, and 
appropriated by the first settlements on its banks, do not con- 
stitute a title to the territory drained by its waters in the na- 
tion performing these acts, then the principles consecrated by 
the practice of civilised nations ever since the discovery of 
the New World must have lost their force. Those principles 
were necessary to procure the peace of the world. Had they 



220 NATIONALITY OF A MERCHANT SHIP. 

not been enforced in practice, clashing claims to nevvly-dis- 
covered territory, and perpetual strife among the nations, 
would have been the inevitable result." 

It may be as well to examine into the real character of 
these alleged facts, before considering how far they warrant 
the application of the principle of international law, to which 
Mr. Buchanan seeks to adapt them. 

In regard to the discovery of the mouth of the Columbia River 
by Capt. Gray, in the merchant ship Columbia, under the flag 
of the U. S., Mr. Calhoun eluded the objection that the Co- 
lumbia was not a public but a private ship, by simply observ- 
ing — " Indeed, so conclusive is the evidence in his (Gray's) 
favour, that it has been attempted to evade our claim on the 
novel and wholly untenable ground that his discovery was 
made, not in a national but private vessel ;" and so passed 
on to other questions. Mr. Buchanan, on the other hand, 
devotes a few lines to the subject: — "The British plenipo- 
tentiary attempts to depreciate the value to the United States 
of Gray's discovery, because his ship was a trading and not 
a national vessel. As he furnishes no reason for this distinc- 
tion, the undersigned will confine himself to the remark, that 
a merchant vessel bears the flag of her country at her mast- 
head, and continues under its jurisdiction and protection, in 
the same manner as though she had been co?nmissioned for 
the express purpose of making discoveries ; besides, beyond 
all doubt, this discovery was made by Gray ; and to what 
nation could the benefit of it belong, unless it be to the United 
States ? Certainly not to Great Britain ; and if to Spain, the 
United States are now her representative. 

Mr. Rush had in a similar manner maintained, " That the 
ship of Captain Gray, whether fitted out by the Government 
of the United States or not, was a national ship. If she was 
not so in a technical sense of the word, she was in the full 
sense of it, applicable to such an occasion. She bore at her 
stern the flag of the nation, sailed forth under the protection 
of the nation, and was to be identified with the rights of fhe 
nation." 

In both these statements it seems to be admitted, that there 
is a technical distinction in the nationality of a public ship 
and of a private ship; but it is maintained that ybr the pur- 
poses of discovery a merchant ship, under the command of a 
private individual, is, in the full sense of the word, a national 
ship. This doctrine, however, finds no countenance in the 



PRACTICE OF NATIONS. 227 

practice of nations, which, on the contrary, makes a broad 
distinction between public and private vessels, in reference to 
all territorial questions. Thus the comity of nations attaches 
to the nationality of public vessels coming into the ports of a 
foreign sovereign different considerations from those with 
which it regards the nationality of private vessels. To go no 
further than the tribunals of the United States, " a public ves- 
sel of war, of a foreign sovereign, coming into our ports, and 
demeaning herself in a friendly manner, is exempt from the 
jurisdiction of this country," (The schooner Exchange v, 
M'Faddon, 7 Cranch, 116 : Supreme Court of the United 
States, 1812 ;) but a private merchant ship has not that cour- 
tesy extended to it, if it ventures intra fauces terrm. For in- 
stance, if a British merchant vessel should enter the port of 
Charleston, with free negro sailors on board, the nationality 
of the flag will not be sufficient to protect them from the 
operation of the municipal law, which forbids liberty to the 
negro within the limits of South Carolina ; and thus it re- 
peatedly happens, that negroes or persons of colour arriving 
in the ports of South Carolina, though free subjects of her 
Britannic Majesty, and engaged on hoard of a British mer- 
chant vessel in the service of the ship, have been by virtue of 
the lex loci immediately taken from under the protectioji of the 
British fag, and thrown into prison. In an analogous man- 
ner, if a merchant ship from Carolina should enter the port of 
London, with one or more negro slaves on board, the mercan- 
tile flag of the United States would not preclude them from 
the freedom which the soil of Great Britain imparts to all who 
come within its precincts. 

A public vessel, however, is not entitled, as a matter of right, 
to any exemption from the jurisdiction of the sovereign whose 
territory she enters. For the jurisdiction of every nation 
within its own territory is exclusive and absolute, and all 
limitations to the full and complete exercise of that jurisdic- 
tion must be traced up to the consent of the nation itself. 
But the comity of nations regards a public vessel as represent- 
ing the sovereignty of the nation whose flag it bears. If it 
therefore leaves the high seas, the common territory of all 
nations, and enters into a friendly port, it is admitted to the 
privileges which would be extended to the sovereign himself. 
One sovereign, however, can only be supposed to enter a 
foreign territory, as his sovereign rights entitle him to no 
extra-territorial privileges, under an express licence, or in the 



228 DR. CHANNING ON THE FLAG. 

confidence that the immunities belonging to his independent 
sovereign station, though not expressly stipulated, are reserved 
by implication, and will be extended to him. In a similar 
manner it is under an implied licence that a public ship en- 
ters the port of a friendly power, and retains its independent 
sovereign character, by the courtesy of the nation within 
the precincts of whose territorial jurisdiction it has placed 
itself. A private ship, on the contrary, entering the ports of 
a foreign power, has freedom of access allowed to it upon a 
tacit condition of a different kind, namely, that it becomes 
subject to the municipal laws of the country. Hence every 
nation assigns to its mercantile marine a distinct flag from 
that which its public ships are authorised to exhibit as the 
credential of their representing the sovereign power of the 
state. 

This distinction between the signification of the respective 
flags is not arbitrary, at the will of each nation, but is recog- 
nised by the law of nations : whilst the mercantile flag im- 
parts to the vessel which bears it a right to participate in the 
privileges secured by commercial treaties with foreign powers, 
the public flag of a nation communicates the full character 
of sovereignty, and is respected accordingly. The commer- 
cial flag thus carries with it nationality, the public flag the 
national sovereignty. 

It is as much out of the power of any particular state to 
disturb this distinction, and to attach to its mercantile flag, 
beyond the jurisdiction of its own territory, different consider- 
ations from those which the practice of nations has sanc- 
tioned, as to increase or diminish the list of offences against 
the law of nations. No individual nation can say, " That is 
our mercantile flag : such and such powers shall attach to it, 
because it is our pleasure that it should be so :" on the con- 
trary, it is the practice of nations which defines those powers, 
and to that practice we must have recourse, if we would as- 
certain them. 

In illustration of the above views, the following extract 
from Dr. Channing's eloquent and able pamphlet on " the 
Duty of the Free States," will not seem out of place. It was 
suggested by the well-known case of the Creole : — " It seems 
to be supposed by some that there is a peculiar sacredness in 
a vessel, which exempts it from all control in the ports of 
other nations. A vessel is sometimes said to be ' an exten- 
sion' of the territory to which it belongs. The nation, we 



"NATIONALITY OF PUBLIC SHIPS. 229 

are told, is present in the vessel ; and its honour and rights 
are involved in the treatment which its flag receives abroad. 
These ideas are, in the main, true in regard to ships on the 
high seas. The sea is the exclusive property of no nation. 
It is subject to none. It is the common and equal property 
of all. No state has jurisdiction over it. No state can write 
its laws upon that restless surface. A ship at sea carries with 
her, and represents, the rights of her country, rights equal to 
those which any other enjoys. The slightest application of the 
laws of another nation to her is to be resisted. She is sub- 
jected to no law but that of her own country, and to the law 
of nations, which presses equally on all states. She may 
thus be called, with no violence to language, an extension of 
the territory to which she belongs. But suppose her to quit 
the open sea, and enter a port, what a change is produced in 
her condition ! At sea she sustained the same relations to ail 
nations — those of an equal. Now she sustains a new and pe- 
culiar relation to the nation which she has entered. She 
passes at once under its jurisdiction. She is subject to its 
laws. She is entered by its officers. If a criminal flies to her 
for shelter, he may be pursued and apprehended. If her own 
men violate the laws of the land, they may be seized and 
' punished. The nation is not present in her. She has left the 
open highway of the ocean, where all nations are equals, and 
entered a port where one nation alone is clothed with au- 
thority. What matters it that a vessel in the harbour of Nas- 
sau is owned in America ? This does not change her 
locality'. She has contracted new duties and obligations by 
being placed under a new jurisdiction. Her relations differ 
essentially from those which she sustained at home or on the 
open sea. These remarks apply, of course, to merchant ves- 
sels alone. A ship of war is an ' extension of the terHtory^ to 
which she belongs, not only when she is on the ocean, but in 
a foreign port. In this respect she resembles an army march- 
ing by consent through a neutral country. Neither ship of 
war nor army falls under the jurisdiction of foreign states. 
Merchant vessels resemhle individuals. Both become sub- 
ject to the laws of the land which they enter." 

The taking possession of a vacant country for the purpose 
of settlement is one of the highest acts of sovereign power, 
for a nation thereby acquires not merely " the domain, by 
virtue of which it has the exclusive use of the country for the 
supply of its necessities, and may dispose of it as it thinks 

II 



230 MR. GALLATIN ON THE FLAG. 

proper, but also the empire, or the right of sovereign command, 
by which it directs and regulates at its pleasure every thing 
that passes in the country," (Vattel, i., § 204.) It is hardly 
necessary to add, that a commission from the sovereign alone 
will authorize the act of taking possession, so as to secure re- 
spect for it, as a puhJic act, from other nations. Thus we find 
that, in the letter from Mr. Gallatin to Mr. Astor, elsewhere 
quoted, this principle was fully appreciated by Mr. Astor, 
when he applied, in 1816, for a commission from the govern- 
ment of the United States. " You mentioned to me that you 
were disposed once more to renew the attempt, and to re- 
establish Astoria, provided you had the protection of the Ame- 
rican flag: for which purpose a /ieM/!e««yi/'5 command would 
be sufficient to you. You requested me to mention this to 
the President, which I did. Mr. Madison said, he would con- 
sider the subject, and although he did not commit himself, I 
thought that he received the proposal favourably." 

It remains to be considered whether the practice of nations 
has attached different considerations to the flag in respect to 
discoveries, Discovei'ies, however, as forming the ground- 
work of territorial title, are in themselves technical. They 
are inchoate acts of sovereignty. "Even in newly-discovered 
countries," said Lord Stowel, in the case of the Fama, already 
cited, " where a title is meant to he established, for the first 
time, some act of possession is usually done and proclaimed 
as a notification of the fact.'' It is not, therefore, the mere 
sight of land which constitutes a discovery, in the sense in 
which the practice of nations respects it, as the basis of terri- 
torial title ; there must be some formal act of taking posses- 
sion, which, as being an act of sovereign power, can only be 
performed through a commission from the sovereign. Thus 
Vattel, in the passage so frequently quoted, says, '* The prac- 
tice of nations has usually respected such a discovery, when 
made by navigators who have been furnished with a commis^ 
sion from their sovereign, and meeting with islands or other 
lands in a desert state, have taken possession of them in the 
name of the nation." 

The conditional title by discovery is entirely the creature 
of the comity of nations ; it has no foundation in the law of 
nature, according to which, if the discoverer has not occupied 
Ihe territory, it would be presumed to remain vacant, and open 
to the next comer. For such purposes, however, the citizen 
nr subject is not regarded as the instrument of his sovereign, 



heceta's discovery. 281 

unless he bears his commission, when his acts are respected 
as public acts, and are operative as between nation and 
nation. 

It would thus appear that the first entering of the mouth 
of the Columbia River by Gray, being the act of a private 
citizen, sailing in a private ship for the purposes of trade, 
under the mercantile flag of his country, was not in the re- 
ceived sense of the word a discovery, which, according to the 
practice of nations, could lay the foundation of a title to terri- 
torial sovereignty. It does not satisfy the required conditions 
upon which alone the comity of nations would respect it. 
When therefore Mr. Buchanan says, "Besides, beyond all 
doubt this discovery was made by Gray, and to what nation 
could the benefit belong, unless it be to the United States," he 
assumes that the comity of nations will attach benefit to such 
a discovery, contrary to the practice of nations. It is thus un- 
necessary to decide to what nation the benefit will belong, in 
a case in which no benefit can be held to have resulted. On 
the other hand, it is admitted by both of the American Secre- 
taries of State, that the discovery of the mouth of the Colum- 
bia, in the popular sense of the word, was made by the Spanish 
navigator Heceta, some years before Gray visited the coast. 
It consequently follows that Gray achieved the first explora- 
tion, and not the discovery of the mouth of the river, even in 
the popular sense of the term. 

In respect to the prior exploration of the Columbia River 
from its head- waters, by Lewis and Clarke, in 1805-6, Mr. 
Calhoun, having conducted the expedition, which had been de- 
spatched under the auspices of the Government of the Unit- 
ed States in the spring of 1804, as far as the head-waters of 
the Missouri, states that " in the summer of 1805, they reached 
the head-waters of the Columbia River. After crossing many 
of the streams falling into it, they reached the Kooskooskee, 
in lat. 43° 34', descended that to the principal northern branch, 
which they called Lewis's ; followed that to its junction with 
the great northern branch, which they called Clarke; and 
thence descended to the mouth of the river, where they land- 
ed, and encamped on the north side, on Cape Disappointment, 
and wintered.''^ Mr. Buchanan, in referring to this part of 
Mr. Calhoun's argument, which he did not consider it neces- 
sary to repeat, observed that he had shown, " that Messrs. 
Lewis and Clarke, under a commission from their Govern- 
ment, first explored the waters of this river almost from, its 



232 THE NORTHERN BRANCH OF THE COLUMBIA. 

head-springs io the Pacific, passing the winter of 1805 and 
1806 on its northern shore, near the ocean." These statements 
however do not correspond with the facts themselves which 
they profess to represent. 

Mr. Rush, in the negotiations of 1824, had set up for the 
United Stales an exclusive claim to the whole territory be- 
tween 42° and 61° north, on the ground that ''it had been 
ascertained that the Columbia River extended by the River 
Multnomah to as low as 42°, and by Clarke's River to a point 
as high up as 51°, if not beyond that point." The obscurity 
in which the geographical relations of the Oregon territory 
were at that time involved, might, to a certain extent, excuse 
the mi?. statement of Mr. Rush on this occasion, for, as already 
observed, it has been subsequently ascertained that the source 
of the Multnomah is in about 43° 45', and that of Clarke's 
River, in 45° 30' ; but Mr. Calhoun's statement involves an 
historical as well as a geographical inaccuracy, which, under 
the circumstances, seems to have been intentionally put for- 
ward, since it is repeated by Mr. Buchanan. It is presumed 
that in the copy of the correspondence which has been circu- 
lated in the public journals, and which has been published in 
a separate form by Messrs. Wiley and Putnam of Waterloo- 
place, there is a misprint in Mr. Calhoun's describing Lewis' 
River as the principal northern branch, more particularly as 
Clarke's River is immediately after spoken of as the great 
northern branch. Lewis' River must evidently have been in- 
tended to be described as the principal southern branch, being 
the river on which the Shoshonee or Snake Indians fish, and 
which the travellers reached on descending the Kooskooskee. 
This inaccuracy may be passed over as an error of the press, 
but in respect to the next assertion of Mr. Calhoun, that 
Lewis and Clarke followed this river to its junction with the 
great northern branch, which they called Clarices River, it is 
not home out by the account which Lewis and Clarke them- 
selves give. On Friday, Sept. 6, Captain Clarke and his 
party reached the first river on the western side of the Rocky 
Mountains, to which they gave the name of ClarJiC^s River, 
(Travels, ch. xvii.,) running from south to north, and which, 
from the account of the natives, they had reason to suppose, 
after going as far northward as the head-waters of the Medi- 
cine River, (a tributary of the Missouri,) turned to the west- 
ward and joined the Tacoutche-Tesse River. It must not be 
forgotten that the Tacoutche-Tesse, discovered by Alexander 



surrosED to be the tacoutciie-tesse. 233 

Mackenzie in 1793, was supposed to be the northernmost 
branch of the Columbia down to so late a period as 1812. 
Thus Alexander von Humboldt, in his New Spain, (1. i., c. 2,) 
writes : — " Sous les 54° 37' de latitude boreale, dans le paral- 
lele de I'ile de la Reine Charlotte, les sources de la riviere de 
la Paix (Peace River) ou d'Ounigigah, se rapprochent de sept 
lieues des sources du Tacoutche-Tesse, que I'on suppose etre 
identique avec la riviere de Colombia. La premiere de ces 
rivieres va a la mer du Nord, apres avoir mele ses eaux a 
celles du lac de I'Esclave et a celles du fleuve Mackenzie. 
La seconde riviere, celle de Colombia, se jette dans I'Ocean 
Pacitique pres du Cap Disappointment, au sud de Nootka- 
Sound, d'apres le celebre voyageur Vancouver, sous les 46° 19' 
de latitude." 

Mr. Greenhow (p. 285) says, " Three days afterwards 
they entered the principal southern branch of the Columbia, 
to which they gave the name of Lewis : and in seven days 
more they reached the point of the confluence with the larger 
northern branchy called by them the Clarke.^^ Such, how- 
ever, is not the account of the travellers, who state that, hav- 
ing followed the course of the Lewis River, they reached on 
the l6th of October its junction with the Columbia River, 
(chap, xviii..) the course of which was " from the north- 
west," as Captain Clarke ascertained by ascending it some 
little distance. They nowhere, throughout the account of 
their travels, call this main river by any other name than the 
Columbia : they nowhere speak of it by the name of Clarke's 
River ; it is a reflection on their memory to represent them 
as supposing that this great northern branch was the river to 
which they gave the name of Clarke, for they fully believed, 
when they reached the main stream, that they had reached 
the Tacoutche-Tesse of Mackenzie, and at the same time the 
Columbia of Gray and Vancouver, of which they considered 
Clarke's River to be merely a tributary. The names of Lewis 
and Clarke are totally unconnected with the great northern 
branch of the Columbia River, which was discovered and first 
explored from its sources in about 52° N. L., by Mr. Thom- 
son, the surveyor or astronomer of the North-west Company, 
in 1811. This is an important fact, inasmuch as the exclu- 
sive claim of the United States was advanced in 1824, to the 
territory as far north as 51°, expressly on the ground that 
Clarke's River extended as far north as that parallel, or even 
beyond that point, which is not the case. This northern 



234 FOKT CLATSOP. 

branch, down which Mr. Thomson first penetrated, is entitled 
to be considered as the main branch of the Columbia, on the 
well-known principle that the sources most distant from the 
sea are regarded as the true sources of a river, according to 
which doctrine the name of Columbia has been in practice 
retained for this northern branch, whilst distinctive names 
have been given to all the southern tributaries. 

Mr. Calhoun continues to say, "and thence they (Lewis 
and Clarke) descended to the mouth of the river, where they 
landed, and encamped on the north side, on Cape Disapj)oint- 
ment, and wintered." The meaning of this passage might be 
doubtful, unless Mr. Buchanan had cleared it up by his ex- 
pression of "passing the winter of 1805 and 1806 on its 
northern shore, near the ocean." When it is remembered 
that it is the possession of the north bank of the river which 
is contested by the two parties to the negotiation ; and that 
the incidents of this expedition are formally alleged, on the 
side of the United States, as forming part of the ground- work 
of their exclusive title, and that the British negotiators have 
objected throughout to the alleged completeness of the title of 
the United States, on the express ground that it is at best an 
aggregate of imperfect titles, and that the distinction between 
a perfect and imperfect title is not one of degree, but of kind, 
it may not be unimportant to remark, that Lewis and Clarke 
passed the winter of 1805-6 on the southern shore of the 
Columbia, in an encampment on a point of high land on the 
banks of the river Netul. It is perfectly true that, having 
proceeded down the Columbia as far as the roughness of the 
waves would allow them, they landed on the north side on the 
16th of November, and encamped on the shore near a village 
of the Chinnook Indians, just above high-water mark, where 
Captain Clarke remained for nine days, until Captain Lewis 
had succeeded in selecting a favourable spot for their winter's 
encampment ; but the locality where they encamped and win- 
tered, was on the south side of the Columbia, amongst the 
Clatsop Indians, and from this very circumstance they gave 
to it the name of Fort Clatsop, which is so marked down in 
the map prefixed to the travels of Lewis and Clarke, with the 
further designation of" The wintering post of Captains Lewis 
and Clarke in 1805 and 1806." Had not Mr. Calhoun speci- 
fied the locality of this winter's encampment as an element 
of the cumulative title of the United States, and had not Mr. 
Buchanan repeated the statement of his predecessor more ex- 



SETTLEMENTS OF THE UNITED STATES. 235 

plicitly, it would not have been thought necessary to discuss 
the circumstances so fully ; but as one object of this inquiry 
is to clear up the facts of the case, which, from the nature of 
the subject, are obscure, if this error of statement had not been 
pointed out, it might have tended to increase the existing in- 
tricacy of the question, more particularly when it has an offi- 
cial character impressed upon it. It can hardly be supposed 
to be an error of the press, since Cape Disappointment, 
which is on the north bank, is referred to by Mr. Calhoun 
as adjoining the spot where they " encamped and win- 
tered," 

The result of this inquiry cannot be better summed up 
than in the words of Mr. Pakenham's counter-statement : — 
" With respect to the expedition of Lewis and Clarke, it must, 
on a close examination of the route pursued by them, be con- 
fessed, that neither on their outward journey to the Pacific, 
nor OR their homeward journey to the United States, did they 
touch upon the head-waters of the principal branch of the 
Columbia River, which lie far to the north of the parts of the 
country traversed and explored by them. 

* Thomson, of the British North-west Company, was the 
first civilised person who navigated the northern, in reality 
the main branch of the Columbia River, or traversed any part 
of the country drained by it. 

*' It was by a tributary of the Columbia that Lewis and 
Clarke made their way to the main stream of that river, which 
they reached at a point distant, it is believed, not more than 
200 miles from the point to which the river had been previ- 
ously explored by Broughton. 

<' These facts, the undersigned conceives, will be found 
sufficient to reduce the value of Lewis and Clarke's explora- 
tion on the Columbia to limits, which would by no means 
justify a claim to the whole valley drained by that river and 
its branches." 

Mr. Calhoun next proceeds to state the grounds on which, 
as alleged, priority of settlement was no less certain on the 
side of the United States : — " Establishments were formed by 
American citizens on the Columbia as early as 1809 and 1810. 
In the latter j^ear a company was formed at New York, at 
the head of which was John Jacob iistor, a wealthy mer- 
chant of that city, the object of which was to form a regular 
chain of establishments on the Columbia River, and the con- 
tiguous coasts of the ^a.cifiCf for commercial purposes. Early 



236 MR. 

in the spring of ISll, they made their first eslablishment on 
the south side of the river, a few miles above Point George, 
where they were visited in July following by Mr. Thomson, 
a surveyor and astronomer of the North-west Company, and 
his party. They had been sent out by that company to fore- 
stall the American company in occupying the mouth of the 
river, but found themselves defeated in their object. The 
American company formed two other connected establish- 
ments higher up the river : one at the confluence of the Oka- 
negan with the north branch of the Columbia, about 600 
miles above its mouth, and the other on the Spokan, a stream 
falling into the north branch, some fifty miles above." 

Mr. Calhoun, in making the above general allusion to 
establishments formed in 1809 and 1810, may be supposed to 
refer to a trading post founded by Mr. Henry, one of the 
agents of the Missouri Fur Company, on a branch of the 
Lewis River, the great southern arm of the Columbia. This 
post, however, was shortly abandoned in consequence of the 
hostility of the natives, and the difficulty of obtaining sup- 
plies, (Greenhow, p. 292.) It would, however, be rather 
an overstrained statement to describe this hunting station as 
an establishment formed on the Columbia, considering its 
very great distance from the junction of the Lewis River with 
the Columbia. Mr. Calhoun, however, may be alluding at 
the same time to the undertaking of Captain Smith, in the 
Albatross, in 1810, who is said by Mr. Greenhow to have at- 
tempted to found a trading post at Oak Point, on the south 
side of the Columbia, about forty miles from its mouth, and 
to have almost immediately abandoned the scheme. Such an 
attempt, however, can hardly be entitled to the character of a 
settlement. Beyond these two instances, it is believed that 
there is no occasion on record of the presence of citizens of 
the United States on the west side of the Rocky Mountains, 
during the years of 1809-10, which could give rise to the 
supposition of an establishment having been formed by them. 

In respect, however, to Mr. Astor's Adventure, the Pacific 
Fur Company was a mere mercantile firm, the formation of 
which originated with Mr. Astor, a German by birth, and 
ultimately a naturalized citizen of the United States. The 
original company was formed in 1810, and, according to Mr. 
Washington Irving, consisted of Mr. Astor himself, three 
Scotchmen, who were British subjects, and one native citizen 
of the United States. Three more Scotchmen, and two more 



ASTORIA :SOr A NATIONAL SETTLEMENT. 237 

citizens of the United States were subsequently admitted, so 
that the majority of the company were British subjects, and 
they had received an express assurance from Mr. Jackson, 
the British Minister at Washington, that " in case of a war 
between the two nations, they would be respected as British 
subjects and merchants,^ [Greenhow, p. 295.] Mr. Astor 
stipulated to retain half the shares for himself, and in return 
to bear all the losses for the first five years, during which 
period the parties had full power to abandon and dissolve the 
association. A detachment of the partners arrived at the 
Columbia River in 1811, and formed a trading establishment 
on the southern bank of the river, on Point George, not far 
from the mouth, which they named Astoria. Mr. Washing- 
ton Irving, who had his information from Mr. Astor himself, 
terms their establishment "a trading house," [Chap, ix.] Not 
long after their arrival they received information from the 
Indians, that the North-west Company had erected a trading 
house on the Spokan River, which falls into the north branch 
of the Columbia, and they were preparing to dispatch a rival 
detachment to act as a counter-check to this establishment, 
when Mr. David Thomson, with a party under the protection 
of the British flag, having descended the Columbia from its 
northernmost source, arrived at Astoria. On his return Mr. 
Stuart, one of the partners of the Pacific Fur Company, ac- 
companied Mr. Thomson's party a considerable distance up 
the Columbia River, and established himself for the winter at 
the junction of the Okanegan with the Columbia, at about 
140 miles from the Spokan River ; here Mr. Stuart, according 
to Mr. Washington Irving, considered himself near enough 
to keep the rival establishment in check. It would thus appear 
that the earliest settlement on the Spokan River was made 
by the North-west Company, and from Mr. Washington 
Irving's account, seems almost to have preceded the founda- 
tion of Astoria ; for whilst the Astorians were occupied with 
their building, they heard from the Indians that white men 
"were actually building houses at the Second Rapids." If, 
however; it was not antecedent, it was at least contempo- 
raneous. 

It can hardly bo contended that the settlement at Astoria 
had a definite national charR.cter, much less that it could im- 
part the national sovereignty of the United States, to the 
territory, wherein it was established. The Astorians might 
perhaps maintain their claim to the domain (dominium utjle,) 

11* 



238 THE NORTH-WEST COMPANY. 

but that they should set up a titfc to the sovereignty (domi- 
nium eminens,) or be held to convey a title to any state which 
should choose to assert it through them, is not conformable to 
the practice of nations. But the plenipotentiaries of the 
United States contend that they have an exclusive title to the 
entire valley of the Columbia, by virtue of this settlement. 
Spain, however, did not admit this title in the negotiations 
preceding the Florida Treaty, nor did the United States ven- 
ture to set it up. When Don Luis d'Onis, in resuming the 
negotiations, proposed, in his letter of January 16, 1819, 
(British and Foreign State Papers, 1819-20, p. 565,) to con- 
cede, on the part of his Catholic Majesty, as the boundary 
between the two states, "a line from the source of the Mis- 
souri, westward, to the Columbia River, and along the middle 
thereof to the Pacific Ocean," and trusted it would be ac- 
cepted, as presenting " the means of realizing the President's 
great plan of extending a navigation from the Pacific to the 
remotest points of the northern seas, and of the ocean," no 
claim was advanced to the valley of the Columbia ; but Mr. 
Adams briefly stated, in reply, that " the proposal to draw the 
western boundary line between the United States and the 
Spanish territories on this continent, from the source of the 
Missouri to the Columbia River, cannot be admitted." Again, 
when the Spanish commissioner, in his letter of February 1, 
1819, stated that, "considering the motive for declining my 
proposal of extending the boundary line from the Missouri to 
the Columbia, and along that river to the Pacific, appears to 
be the wish of the President to include within the limits of 
the Union all the branches and rivers emptying into the said 
River Columbia," and proposed to draw the boundary along 
the River S. Clemente, or Multnomah, to the sea; and de- 
livered a project of a treaty, in which it was stipulated that 
his Catholic Majesty should cede all the country belonging to 
him eastward of the boundary line to the United States ; no 
original title to the entire valley of the Columbia, no claim to 
the settlement of Astoria, as a national settlement, was ad- 
vanced by the United States : yet Astoria was on the western 
side of the Multnomah or Willamette River, as it is now 
called, and was assumed in both the above proposals to be 
beyond the limits of " the dominions of the Repui)lic." 

Astoria passed into the hands of the North-west Company 
by peaceable transfer. It was sold by the partners resident in 
the establishment, after they had dissolved the association, 



THE UNITED STATES IN POSSESSION OF ASTORIA. 239 

which, by the terms of the contract, the parties had power to 
do. Wheu Captain Black, in his Britannic Majesty's sloop- 
of-war the Racoon, arrived there in 1813, he did not capture 
Astoria, for it was not the property of an enemy, but he took 
possession of it in the name of his Britannic Majesty, and 
hoisted the British ensign ; thereby formally asserting the 
sovereignty of Great Britain over the property of British 
subjects. In 1818, the government of the United States was 
formally placed in possession of Astoria ; and this was the 
first occasion on which an act of sovereignty was exercised 
by that Power. Mr. Calhoun states that this act " placed 
our possession where it was before it passed into the hands of 
British subjects." On the contrary, it placed Astoria in the 
hands of the government of the United States, in which hands 
it had never been before : for, antecedently to the transfer to 
the North-west Company by purchase, it was in the hands of 
an association, the majority of which were British subjects, 
who could not, according to any received principle of inter- 
national law, be held to have represented the sovereignty of 
the United States. 

It was admitted by Lord Castlereagh, in the discussions 
with Mr. Rush antecedent to the restoration of Astoria, that 
the United States were entitled to be reinstated there, and 
** to be the party in possession ivhilst treating of the title,'''' 
At that time the United States had confined their claims to 
the restitution of a post, which, as they asserted, " had been 
established by tliem on the Columbia River, and had been 
taken during the war, and consequently came within the pro- 
visions of the first article of the Treaty of Ghent." Mr. 
Bagot, in his reply to Mr. Adams, of 26th November, 1817, 
(British and Foreign State Papers, 1821-22, p. 461,) stated 
that, " from the reports made to him, it appeared that the post 
had not been captured during the late war, but that the Ame- 
ricans had retired from it under an agreement made with the 
North-west Company, who had purchased their effects, and 
who had ever since retained peaceable possession of the 
coast." The whole discussion was thus evidently limited to 
the settlement at Astoria ; and Lord Castlereagh admitted, on 
the statement of the United States, that they had a prima 
facie claim to be reinstated in the post, in conformity to the 
provisions of the treaty, and to he the party in possession 
whilst treating of the title. 

Mr. Calhoun, in the further course of his argument, con- 



240 Mli. CALUOUn's ARGU.'llliAT. 

tends that, after this admission on I ho part of Lord Castle- 
reagh, the Convention of 1818 "preserved and perj)ctuated 
all our claims to the territory^ incki(Hng the acknowIed<2;cd 
right to be considered the party in jjossession ;" and Mr. Bu- 
chanan, in still more exphcit language, maintains the same 
position. " He claims, and he thinks he has shown, a clear 
title, on the part of the United States, to the whole region 
drained hy the Columbia, with the right of being reinstated, 
and considered the party in possession whilst treating of the 
title ; in which character he must insist on their being con- 
sidered, in conformity with posilice rjaty stipulations. He 
cannot, therefore, consent that they shall be regarded, during 
the negotiations, merely as occupanls in common with Great 
Britain. Nor can he, while thus regarding their rights, pre- 
sent a counter-proposal, based on tiie su|)position of joint oc- 
cupancy merely, until the question of title to the territory is 
fully discussed." This argunuMit is essentially unsound 
throughout. The title of the United States to possess the 
settlement, in other words, not to be excluded from the terri- 
tory^ is strangely confounded with the title to exclude the Bri- 
tish from the entire territory. These titles are assumed 
to be identical, being most distinct. Great Britain does not 
require to be considered as an occupant in common of Astoria. 
The United States were never admitted by positive treaty stipu- 
lations to be the party entitled to be considered in j^ossession 
of the whole region of the Columhia, which Mr. Buchanan 
maintains to have been conceded by Lord Castlereagh. But 
Great Britain does require to be considered as an occupant in 
common of the region of the Columbia^ and the United States 
is entitled to the right of adverse possession as far as the 
settlement at the mouth of the river, on its south bank is con- 
cerned. What, however, is the etfect of such a right of pos- 
session ? Simply that, as far as the settlement of Astoria is 
concerned, it is not necessary for the United States to prove 
its right of dominion. Its right of possession is a valid right, 
unless a right of dominion can be established by some other 
Power. But Great Britain asserts no right of dominion, — she 
does not claim to evict the United States from its actual pos- 
session, — but, as she claims no exclusive title for herself, so 
she recognises no exclusive title in any other Power. The 
principle of a mutual right of occupancy of the territory was 
admitted, when it was agreed that the United States should 
be placed in possession sub modo, whilst treating of the title. 



POSSESSION SUB 3I0D0. 241 

The question, however, between the two governments was not 
one of law, bat oi^ fact. Issue had been joined in the pre- 
vious letters between the Secretary of State and the Minister 
of Great Britain, at Washington : whilst the former asserted 
Astoria had been captured during the war, the latter main- 
tained that it had passed into the hands of the North-west 
Company by peaceable purchase. 

The United States asserted that Astoria had become a Bri- 
tish possession by virtue of the/w5 belli^ the operation of which 
was in this case expressly suspended by the first article of the 
Treaty of Ghent : on this plea they claimed that it should be 
restored to them. Great Britain, on the other hand, maintain- 
ed that it had passed into the hands of the North-west Com- 
pany by peaceable purchase : on this plea they contended 
that the United States were not entitled to demand its restora- 
tion. When, therefore, the United States acquiesced in the 
proposal of Lord Castlereagh, they admitted the legal effect of 
the fact asserted by Great Britain, if it could be substantiated. 
They thus admitted the common right of Great Britain to form 
settlements, by agreeing to treat of the title on the ground al- 
leged by Great Britain, precisely as Great Britain admitted a 
corresponding right in the United States, by agreeing to dis- 
cuss the alleged fact that Astoria had passed into the hands 
of the British jwre belli, by which it was implied that it had 
been antecedently a possession of the United States. We 
thus find in the negotiations of 1818, which terminated in the 
Convention of the 20th October, concluded fourteen days af- 
ter the actual restoration of Astoria, that Messrs. Gallatin and 
Rush nowhere hint at an exclusive title in the United States. 
" We did not assert,'' they say in their letter to Mr. Adams, of 
October 20, 1818, " that the United States had ii perfect right 
to that country, but insisted that their claim was at least good 
against Great Britain," (British and Foreign State Papers, 
1819-20, p. 169.) Yet, in the face of this solemn admission, 
at the commencement of the earliest negotiations, and of the 
fact that the title has been treated of on so many occasions, 
Mr. Buchanan now asserts that " our own American title to 
the extent of the valley of the Columbia, resting as it does on 
discovery, exploration, and possession — a possession acknow- 
ledged by a most solemn act of the British government itself, 
is a sufficient assurance against all mankind; whilst our su- 
j)eradded title derived from Spain extends our exclusive rights 
over the whole territory in dispute against Great Britain." 



242 MR. Buchanan's assertion. 

Such is the outline of the grounds on which the United 
States set up an exclusive title to the entire valley of the Co- 
lumbia, that is, a title to exclude Great Britain from making 
settlements there. Mr. Buchanan observes, that this title is 
"older than the Florida Treaty of February 1819, under 
which the United States acquired all the right of Spain to the 
north-west coast of America, and exists independently of its 
provisions. Even supposing, then, that the British construc- 
tion of the Nootka Sound Convention was correct, it could not 
apply to this portion of the territory in dispute. A convention 
between Great Britain and Spain, originating from a dispute 
concerning a petty trading establishment at Nootka Sound, 
could not abridge the rights of other nations. Both in public 
and private law, an agreement between two parties can never 
bind a third, without his consent, expressed or implied." 

Mr. Buchanan thus appears disposed to renounce the deri- 
vative title of Spain, upon which, as completing the defects in 
the original title of the United States, considerable stress had 
been elsewhere laid, " supposing the British construction of 
the Nootka Convention to be correct :" in other words the 
commissioners of the United States claim to avail themselves 
of the provisions of this convention, if they can be made to 
support their title, but to repudiate them, if they should be found 
to invalidate it, which of course is inadmissible. But when 
Mr. Buchanan says, " A convention between Great Britain 
and Spain could not abridge the rights of other nations,''^ though 
the proposition be abstractedly true, yet on this occasion it 
does not apply. First of all, because Great Britain, in recog- 
nising the right of Spain to make settlements on the north- 
west coast in places not yet occupied, did not either at the 
time of the convention, or subsequently, recognise such a right 
as an exclusive right in respect to other nations. Secondly, 
because Spain, in recognising the right of Great Britain to 
make settlements in an analogous manner, did not thereby 
declare other nations excluded from making settlements ; in 
fact, there is not a single word within " the four corners" 
of the treaty, which can be held to abridge the rights of other 
nations. Thirdly, because the United States, at the time 
when the convention was concluded, had no other right than 
that of making settlements, which Great Britain has never 
once maintained that the Nootka Convention abridged, nor 
does it at this moment contend so. 

If, on the other hand, the United States had an exclusive ti- 



MR. Calhoun's admission. 243 

tie to the valley of the Columbia before the Treaty of Florida, 
or in other words, as asserted in 1324, to the entire territory 
between 51° and 42°, and that title existed independently 
of its provisions, it is difficult to understand the object of the 
protracted negotiations between Don Luis de Onis and Mr. 
Adams, which resulted in his Catholic Majesty first withdraw- 
ing from the Rocky Mountains to the Columbia River, then 
from the Columbia to the Multnomah or Willamette River, and 
finally ceding all his rights, claims, and pretensions to the ter- 
ritory north of the parallel of 42°. Mr. Buchanan's position is 
untenable in the face of the negotiations antecedent to the 
Florida Treaty. 

The original title, however, of the United States, does not 
satisfy the requirements of the law of nations, in the extent in 
which it is maintained to be effective. Let it be kept in mind 
that Great Britain has never claimed the exclusive privilege of 
settling on the north-west coast of America, to the north of the 
parts occupied by Spain, but she maintains her right not to be 
excluded from any places not already occupied. The United 
States, on the other hand, are not satisfied with claiming a 
right to make settlements, but they assert a right to exclude 
Great Britain from making settlements, and this, too, by virtue 
of an act performed by a private citizen, without any commis- 
sion from the state, subsequent to the time when the right of 
Great Britain to make settlements had been formally recog- 
nised by Spain in a solemn treaty, and was thus imtent to the 
civilised world. 

This very act, however, Mr. Calhoun admits to be defective 
for the purpose cf establishing an exclusive title, when he 
says, *' Time, indeed, so far from impairing our claims, has 
greatly strengthened them since that period, for since then the 
Treaty of Florida transferred to us all the rights, claims, and 
pretensions of Spain to the whole territory, as has been stated. 
In consequence of this, our claims to the portion drained by 
the Columbia River — the point now the subject of considera- 
tion — have been much strengthened by giving us the incontest- 
able claim to the discovery of the river by Heceta above 
stated." 

It is thus admitted, that the first entering of the River Co- 
lumbia by Gray, was not a discovery.^ but an exploration. 
There can be no second discovery for the purpose of founding 
an exclusive title. Heceta's discovery is incontestable for 
the purpose of barring any subsequent claim by discovery, and 



244 IMPEKFECT TITLE OF SPAIN. 

the original title of the United States, resolves itself into a 
title founded upon the first exploration of the entrance of the 
Columbia from the sea, and on the first exploration of its 
southern branches from the Rocky Mountains. Such a title, 
however, can neither from the nature of things, nor the prac- 
tice of nations, establish a right to cxchide all other nations 
from every part of the entire valley of the Columbia. On 
the contrary, the assertion of such a ri<;ht is altogether at va- 
riance with the comity of nations, on which alone title by dis- 
covery rests. For, if the United States maintain that the dis- 
covery of the Columbia River, for the purpose of estabhshing 
a territorial title, dates from the enterprise of Gray, they set 
aside the discovery of Heceta, in opposition to the comity of 
nations ; yet it is upon this very comity of nations that they 
must rely to obtain respect for their own asserted discovery. 

But when Mr. Calhoun maintains that, by the Florida 
Treaty, the title of the United States was much slrcngthcned 
by the acquisition of the incontestable claim to the discovery 
of the river by Heceta, he admits that the title of the United 
States was an imperfect title before that treaty ; for a perfect 
title is incapable of being strengthened, — exclusiveness does 
not admit of degree. That the title of the United States to 
form settlements in the parts not occupied was strengthened 
by the Florida Treaty, is perfectly true. Great Britain, be- 
fore that treaty, might have refused to recognise any title in 
the United States under the general law of nations ; but after 
that tre Jy, she would be precluded by the provisions of the 
Nootka Sound Convention, as the United States would thence- 
forward represent Spain, and allege a recognised right of mak- 
ing settlements under that convention ; but, that the original 
title of the United States, which was not an exclusive title by 
the law of nations, could become an exclusive title against 
Great Britain by the acquisition of the title of Sj)ain, which 
was expressly not exclusive under a treaty concluded with 
Great Britain, independently of other considerations which 
were duly weighed at the conclusion of the Nootka Conven- 
tion, requires only to be stated in plain language to carry with 
it its own refutation. 

The efliccts of the Nootka Convention, or rather Conven- 
tion of the Escurial, have already been discussed in the two 
preceding chapters. Mr. Buchanan, in his letter of July 12, 
1845, says, " Its most important article (the third) does not 
even grant in affirmative terms the right to the contracting par- 



MR. Buchanan's state3ient. 245 

ties to trade with the Indians and to make settlements. It 
merely engages in negative terms, that the subjects of the 
contracting parties * shall not be disturbed or molested' in the 
exercise of these treaty-privileges.^' Surely there is a contra- 
diction of ideas in the above passages. How can the right to 
trade with the Indians and to make settlements be termed a 
ireafy-privilege in the latter sentence, M^hen in the former 
sentence it is expressly denied to have been granted by the 
treaty ? Mr. Buchanan, however, in asserting that the third 
article did not grant in affirmative terms the right specified in 
it, adopts precisely the same view that the British commis- 
sioners have throughout maintained ; namely, that the third 
article did not contain a grants but a mutual acknowledgment 
of certain rights in the two contracting parties, with respect 
to those parts of the north-western coast of America not al- 
ready occupied. Mr. Buchanan, however, in a subsequent 
letter says, " The Nootka Convention is arbitrary and artifi- 
cial in the highest degree, and is anything rather than the 
mere acknowledgment of simple and elementary principles 
consecrated by the law of nations. In all its provisions it is 
expressly confined to Great Britain and Spain, and acknow- 
ledges no right whatever in any third Power to interfere with 
the north-west coast of America. Neither in its terms, nor 
in its essence, does it contain any acknowledgment of pre- 
viously subsisting territorial rights in Great Britain, or any 
other nation. It is strictly confined to future engagements, 
and these are of a most peculiar character. Even under the 
construction of its provisions maintained by Great Britain, her 
claim does not extend to plant colonies, which she would have 
had a right to do under the law of nations, had the country 
been unappropriated ; but it is limited to a mere right of joint 
occupancy, not in respect to any part, but to the whole, the 
sovereignty remaining in abeyance. And to what kind of 
occupancy ? Not separate and distinct colonies^ hut scattered 
settlements, intermingled with each other, over the whole sur- 
face of the territory, for the single jjurpose of trading with 
the Indians, to all of which the subjects of each Power should 
have free access, the right of exclusive dominion remaining 
suspended. Surely, it cannot be successfully contended that 
such a treaty is ' an admission of certain principles of inter- 
national law,' so sacred and so perpetual as not to be annulled 
by war. On the contrary, from the character of its provisions, 
it cannot be supposed for a single moment that it was intend- 



240 TERRITORIAL RIGHTS. 

ed for any purpose but that of a mere iemjwrary arrangement 
betNVeen Great Britain and »Hpain. The laic of nations recog- 
nises no such principles, in regard to unappropriated territory, 
as those embraced in this treaty, and the British plenipoten- 
tiary must fail in the attempt to prove that it contains ' an 
admission of certain principles of international law' which 
v/ill survive the shock of war." 

Almost all the topics in the above passage have been al- 
ready discussed in the two previous chapters, as they were 
very dextrously urged by the commissioners of the United 
States in the course of the previous negotiations ; so that a 
detailed examination of them on this occasion will not be re- 
quisite. The first article, however, does contain an acknow- 
lodgment of previously subsisting territorial rights, for it was 
agreed that " the buildings and tracts of land, of which the 
subjects of his Britannic Majesty were dispossessed, about 
the month of April 1789, by a Spanish officer, shall be restored 
to the said British subjects." This article of the treaty, when 
placed side by side with the declaration on the part of his 
Catholic Majesty of an exclusive right of forming establish- 
ments at the port of Nootka, and with the counter-declaration 
on the part of his Britannic Majesty of his right to such es- 
tablishments as his subjects might have formed, or should be 
desirous of forming in future, at the said bay of Nootka, can- 
not be held to contain an acknowledgment on the part of 
Spain of a previously subsisting territorial right in Great 
Britain. In respect to its provisions for the future, and to the 
interpretation which the commissioners of the United States 
have sought to affix to the word " settlement," namely, that 
mere trading posts or factories were contemplated, it has been 
shown in the previous chapters, that, from the language of 
the treaty itself, in which the word "settlements" is, in three 
other places, employed to designate territorial possessions, and 
from the general language of treaties, such as the Treaty of 
Paris in 1763, as contrasted with the Treaty of London in 
1815, such a view is quite incapable of being satisfactorily 
established : on the contrary, it is by implication refuted by 
the very stipulations in the fifth article, for free access and 
unmolested trade with these very settlements. Again, the 
character of the provisions of the convention is alleged to 
evince the intention of its being a mere temporary arrange- 
ment. Such, however, was not the opinion of Mr. Fox, in 
respect to the sixth article, when he charged the British Min- 



DEBATES IN THE BRITISH PARLIAMENT. 247 

ister with having renounced the previous rights of Great Brit- 
ain to plant colonies in the unoccupied parts of South America ; 
nor of Mr. Stanley, in reference to the third article, when he 
said, " The southern fisheries will now be prosecuted in peace 
and security ;" nor of the Duke of Montrose, when he said, 
•' The great question of the southern fishery is finally estab- 
lished, on such grounds as must prevent all future dispute ;" 
nor of Mr. Pitt, when he said, that " it was evident that no 
claim (of Spain's) had been conceded,— that our right to the 
fisheries had been acknowledged, — and that satisfaction had 
been obtained for the insult offered to the Crown," (Hansard's 
Parliamentary History, vol. xxviii., p. 970 ;) or, as otherwise 
reported, " the claims of Spain had been receded from, and 
every thing stated in the royal message had been gained," 
(Gentleman's Magazine, vol. Ixx., a. d.. 1790, part ii., p. 1160.) 
Mr. Fox's chief cause of complaint against the treaty was, 
that it was a treaty of concessions on the part of Great Britain, 
and not of acquisitions : and when Mr. Grey, in taunting the 
Minister, complained, as instanced by Mr. Buchanan, " that 
where we might form a settlement on one hill, the Spaniards 
might erect a fort upon another," he in fact complained, not 
that we had not maintained a right to form territorial settle- 
ments, and to exercise acts of sovereignty in them, but that 
we had not asserted this right so as to exclude the Spaniards 
entirely from the country. Reference has been made to these 
debates in the British Houses of Parliament, rather to illus- 
trate than to prove the fact of the treaty having been regard- 
ed in a very different light from a mere temporary engage- 
ment, by those who contended that Great Britain had conced- 
ed more advantages than she had acquired. Mr. Pitt, indeed, 
denied Mr. Fox's positions, and in answer to them maintained, 
'* that though what this country had gained consisted not of 
new rights, it certainly did of new advantages. We had be- 
fore a right to the Southern Whale Fishery, and a right to 
navigate and carry on fisheries in the Pacific Ocean, and to 
trade on the coasts of any part of it north-west of America : 
but that right not only had not been acknowledged, but dis- 
puted and resisted : whereas, by the convention, it was secured 
to us — a circumstance, which, though no new right, was a new 
advantage.^'' That the condition of intermixed settlements, 
in regard to unappropriated lands, is clearly recognised by the 
law of nations, as consistent with the full and absolute inde- 
pendence of two separate nations, has been already shown by 



248 MR. PITT S DECLARATIOJf. 

reference to acknowledged authorities on international law, 
so that Mr. Buchanan's entire argument appears to have been 
advanced rather upon specious than solid grounds. 

There are several other arguments in the correspondence 
of the Commissioners of the United States that might deserve 
attention, were it not that the discussion would exceed the 
contemplated limits of this work, which has probably already 
attained too large a bulk. It has, however, been found im- 
possible to compress the inquiry within narrower bounds, 
without incurring the double risk, on the one hand, of ap- 
pearing to those who are imperfectly informed on the subject, 
not to have given sufficient consideration to the arguments 
of the Commissioners of the United States, — and, on the other 
hand, of causing to those who are well acquainted with the 
facts, some dissatisfaction by too cursory an exposure of the 
unsoundness of those arguments. Besides, the course adopted 
has been thought to be well warranted by the importance of 
the question, and to be at the same time more consistent 
with the respect due to the distinguished negotiators. 



249 



CHAPTER XVIII. 



REVIEW OF THE GENERAL QUESTION. 

Presumption in Favour of the Common Right of Great Britain. — No 
exclusive Rights in Spain or the United States. — Convention of 1818. — . 
Convention of 1827. — Mr. Rush's Admission in 18*24, that the United 
States had not a perfect Right. — Cession of Astoria. — Course of the 
Negotiations —Messrs. Rush and Gallatin in 1818.— Mr. Rush in 1824. 
—Mr. Gallatin in 182G.— Negotiations of 1844-5.— Mr. Buchanan's 
Offer — Mr. President Polk's Message to Congress. — Consequences 
involved in the two Proposals. — Valueless character of the Country 
north of 49°. — Consequences of the Convention of 1827 being abrogat- 
ed. — Present condition of the Northern and Southern Banks of the 
Oregon. — Voyages of British Subjects: — Drake, — Cook, — Vancouver. 
— Settlements of Great Britain. — Settlements of the United States. — 
Rule of Partition advanced by the United States in their Negotiations 
with Spain. — Its Application to the present Question. — Objections to 
it. — Mr. Pakenham's Letter of Sept. 12, l844. — Suggestion as to a fur- 
ther Proposal on the Part of Great Britain. — Mr. VVebster's Anticipa- 
tions of the future Destinies of Oregon. — Mr. Calhoun's Declaration in 
1843. 

The failure on the part of the United States to make out 
their exclusive claim estabHshes at once a concki.sive inference 
in favour of the common title of Great Britain. The proof 
required in the two cases is essentially distinct. Where two 
nations are already settled in a country, the onus probandi 
rests with the party that seeks to exclude the other. Inde- 
pendent of the presumption from inference, Great Britain has 
conclusive jjrimd facie evidence of a right to form settlements 
in the country ; first, in the recognition of this right by a 
Power which had asserted an exclusive title to the entire 
country under the guarantee of the Treaty of Utrecht, to 
which all the great colonial Powers in America were parties, 
but which ultimately abandoned it by the signature of the 
Convention of the Escurial : secondly, in the undisturbed 
enjoyment of this right during a period which, according to 
the Civil Law, to which all civilised nations agree in appeal- 
ing for the arbitration of public differences between one nation 
and another, from the ncce.ssity of some common standard, 



250 PRESUMPTION OP A COMMON RIGHT. 

constitutes a valid prescription, such as was recognised in the 
case of Russia by the United States in 1824, and by Great 
Britain in 1825 ; thirdly, in the partition having been the 
subject of repeated negotiations, and more especially from the 
proposals to negotiate both in 1824 and 1826 having origi- 
nated with the United States, which thereby admitted the 
claims of Great Britain to be similar in hind with their own, 
though they might maintain them to be different in degree. 

It seems to have been contended by the commissioners of 
the United States in the course of the last negotiation, that 
" whilst the proper title of the United States gave them exclu- 
sive rights against all mankind, the swperaddition of the 
Spanish title extended their exclusive right as against Great 
Britain," (Letter of Mr. Buchanan, July 12, 1845.) The 
enjoyment, however, of the territory by Great Britain was 
antecedent to the proper title of the United States, whereas 
the possession of the United States can be accounted for con- 
sistently with the continuance of the common right of Great 
Britain, which she claims by virtue of a title antecedent to 
such possession. But if the superadded Spanish title con- 
ferred an extension of exclusive rights on the United States, 
it must have been proprio vigore an exclusive title ; and if so, 
valid against the United States themselves : so that, on that 
supposition, the proper right of the United States could not 
be an exclusive right. There cannot be two exclusive titles 
in different nations to the same country, and Great Britain 
would be expressly debarred by the provisions of the Conven- 
tion of the Escurial from recognising an exclusive title in the 
United States, antecedent to their acquisition of the Spanish 
title by the Treaty of Florida, because she had recognised in 
1790 the right of Spain, in common with herself, to settle m 
any places of the north-west coast of America not as yet 
occupied : whilst she could not recognise the pights which 
devolved to the United States from Spain, in 1819, as exclu- 
sive rights, in the face of her previous admission that the 
United States were entitled to be considered as the party in 
possession of Astoria whilst treating of the title, and in con- 
travention to the third article of the Convention of 1818, which 
was grounded upon the basis of both the United States and 
Great Britain, as well as other Powers, having at that time 
claims to the country. In fact. Great Britain had acknow- 
ledged the common title of Spain before the time when the 
United States assert their own exclusive title to have com- 



CONVENTION OF 1818. 251 

menced ; and she had acknowledged the common title of the 
United States, pending the continuance of the recognised 
title of Spain : so that she is precluded from recognising the 
title of either state to be an exclusive one, if she were even 
disposed to do so, by her own previous acts. 

On the other hand, the United States themselves are pre- 
cluded by their own previous acts from setting up either their 
own original title, or their derivative title from Spain, as an 
exclusive title. 

By the convention, signed at London, of October 20, 1818, 
it was agreed in the third article, " that any country that may 
be claimed by either party on the north-west coast of America, 
westward of the Stony Mountains, shall, together with its 
harbours, bays, and creeks, and the navigation of all the rivers 
within the same, be free and open for the term of ten years 
from the date of the present convention, to the vessels, citi- 
zens, and subjects of the two Powers ; it being well under- 
stood that this agreement is not to be construed to the preju- 
dice of any claim which either of the two contracting parties 
may Imve to any part of the said country, nor shall it be taken 
to affect the claims of any other Power or state to any part 
of the said country ; the only object of the high contracting 
parties, in that respect, being to prevent disputes and difTer- 
ences among themselves. ^^ 

This article, in its very terms, implies the renunciation by 
both parties of an exclusive right to the entire territory, not 
merely in reference to each other, but still further in reference 
to other Powers. 

By the convention, signed at London, of August 6, 1827, 
all the provisions of the third article of the Convention of 
1818 were indefinitely extended, subject to abrogation, at the 
option of either party, upon twelve months' notice ; and by 
the third article it was stipulated, that " nothing contained in 
this convention, or in the third article of the convention of 
the 20th October, 1818, hereby continued in force, shall be 
construed to impair, or in any manner affect, the claims which 
either party may have to any part of the country westward of 
the Stony or Rocky Mountains." 

What those claims were on the part of the United States 
at the time of the Convention of 1818, was explicitly stated 
by Messrs. Gallatin and Rush, the Commissioners of the 
United States, before it was concluded. In their letter to 
Mr. Adams, of October 20, 1818, which commences with 



252 SfATUS ANTE BELLUM. 

these words, '* We have the honour to transmit a convention, 
which we concluded this day with the British plenipotentia- 
ries," they state in reference to the negotiations, " We did not 
assert that the United States had a perfect right to that coun- 
try, (i.e., the country westward of the Stony Mountains,) but 
insisted that their claim was at least good against Britain." 
In other words, the plenipotentiaries on the part of the United 
States, at the first opening of the negotiations respecting the 
definitive adjustment of the mutual claims of the two parties 
westward of the Rocky Mountains which has been a subject 
of subsequent negotiation on three separate occasions, limited 
their claims expressly to an imperfect right, — a right in com- 
mon with Great Britain. They had already, in assenting to 
be placed in possession of Astoria " whilst treating of the 
title," according to Lord Castlereagh's agreement, as recorded 
by Mr. Rush, admitted the common right of Great Britain to 
possess settlements in that country. The United States had 
contended that Astoria had become a British possession jwre 
helli^ and Great Britain had covenanted by the first article of 
the Treaty of Ghent to restore ^11 her acquisitions made^'wre 
helli. Great Britain, on the contrary, had maintained that 
Astoria had passed into the hands of the North-west Company 
by peaceable transfer. In agreeing then to treat of the title, 
the two parties agreed to discuss these two facts, the former 
implying the common right of the United States to make 
settlements, the latter, the common right of Great Brit- 
ain. It was idle to enter into an inquiry into the respec- 
tive truth of the alleged facts, unless it followed that the title 
of the party that could substantiate its statement would 
thereby be at once established. This however, implied a 
possibility on either side of a rightful title, on the side of the 
United States by the Treaty of Ghent, on the side of Great 
Britain by the Law of Nations. The United States relied 
upon the status ante helium, the lawfulness of which, in this 
particular case, was admitted by Great Britain's consentmg 
to entertain such a title ; Great Britain rested on the received 
principles of international law, according to which her sub- 
jects, in common with those of other states, were entitled to 
make peaceable acquisitions in such parts of the north-west 
coast as were not yet occupied by any other civilised nation, 
which the United States could not gainsay. After the con- 
sent of both sides to treat of the title upon this footing, it is 
out of the question to suppose that it is competent for either 



COURSE OP THE NEGOTIATIONS. 253 

party on the renewal of negotiations to set up an exclusive 
title : such a proceeding would be essentially aggressive in its 
character, and would be altogether inconsistent with the tacit 
admission on both sides, when they agreed to entertain the 
consideration of each other's title. 

Let us now proceed to examine what has been the conduct 
of the two parties throughout the course of the various nego- 
tiations. 

It having been expressly stated in 1818, by Messrs. Rush 
and Gallatin, that the United States did not assert a perfect 
right to the country^ Mr. Rush, in his letter to Mr. Adams, 
proceeds to state, that " when the plenipotentiaries of the 
United States, on their part, stated, 'that there was no reason 
why, if the two countries extended their claims westward, the 
boundary limit of the 49th parallel of north latitude should not 
he continued to the Pacific Ocean,''^ the British commissioners, 
though they made no formal proposition for a boundary, inti- 
mated that the river itself was the most convenient that could* 
be adopted, and that they would not agree to any that did not 
give them the harbour of the mouth of the river, in common 
iviih the United States. 

The history of the subsequent negotiations will show t >at 
on each occasion the United States have increased their 
claims and reduced their concessions, while Great Britain has 
not only not increased her claims, but on the contrary has 
advanced in her concessions. 

Thus, in 1824, Mr. Rush commenced the negotiation by 
claiming for the United States, '*in their own right, and as 
their absolute and exclusive sovereignty and dominion, the 
whole of the country west of the Rocky Mountains, from the 
42d to at least as far up as the 51st degree of north latitude.'* 
He further said, that " in the opinion of my government, the 
title of the United States to the whole of that coast, from lati- 
tude 42° to as far north as 60°, was superior to that of Britain 
or any other Power : first, through the proper claim of the 
United States by discovery and settlement ; and secondly, as 
now standing in the place of Spain, and holding in their hands 
her title." 

In accordance with these views, Mr. Rush annexed to the 
Protocol of the 12th Conference a formal proposal, that 
Great Britain should stipulate that her subjects should make 
no settlement on the north-west coast of America, or the is- 
lands adjoining^ south of the 51st degree of latitude ; the 

12 



254 MR. rush's proposal. 

United States stipulating, that none should be made by her 
citizens north of the olst degree. The British negotiators in 
reply proposed to accede to a line along the 49th parallel of 
north latitude as far as the north-easternmost branch of the 
Columbia, and thence down the middle of that river to the 
sea, the navigation of the river to be for ever free to both 
parties. The commisioner of the United States, on the other 
hand, would only vary his proposed line to the south, so as 
to consent that it should be the 49th instead of the 51st de- 
gree of north latitude, which was the original proposal in 1818, 
with the navigation of the river free to both parties. 

On the negotiations being resumed in 1826, Mr. Gallatin, 
on the part of the United States, having set up a new ground 
of title founded on the acquisition of Louisiana from France 
in 1803, and its contiguity through the intervening chain of 
the Rocky Mountains to the territory under discussion, limit- 
ed his olier to the 49th parallel with the navigation of the 
civer free to both parties, as before, whilst the British com- 
missioners expressed their willingness to yield to the United 
States, in addition to what they first offered, a detached ter- 
ritory extending, on the Pacific and the Strait of Fuca, 
from Bullfinch's Harbour to Hood's Canal, and to stipulate 
that no works should at any time be erected at the mouth 
or on the banks of the Columbia, calculated to impede the 
free navigation of that river by either party. 

This last stipulation was evidently adapted to obviate a 
difficulty which Mr. Prevost, the agent of the United States 
at the restoration of Astoria, had suggested to the United 
States Government as early as Nov. 11, 1818, in his report 
upon the Columbia River : — "In addition to this, it is suscept- 
ible of entire defence, because a ship, after passing the bar, 
in order to avoid the breaking of the sea on one of the banks, 
is obliged to bear up directly for the knoll forming the cape, 
at all times, to approach within a short distance of its base, 
and most frequently there to anchor. Thus a small battery 
erected on this point, in conjunction with the surges on the 
opposite side, would so endanger the approach as to deter an 
enemy, however hardy, from the attempt." (British and 
Foreign State Papers, 1821-22, p. 4G7.) 

In the negotiations of 1844-5, lately brought to a close, 
Mr. Pakenham, the British plenipotentiary at a very early 
period, proposed in a letter of Aug. 26, 1844, in addition to 
what had been already ofTered on the part of the United 



255 

States, and in proof of the earnest desire of her Britannic 
Majesty's Government to arrive at an arrangement suitable 
to the interests and wishes of both parties, to undertake to 
make free to the United States any port or ports which the 
United States Government might desire either on the main- 
land, or on Vancouver's Island, south of 49° ; and on Mr. 
Calhoun's declining to make any counter-proposal, based on 
the supposition of the United States and Great Britain being 
occupants in common, Mr. Pakenham suggested " an ar- 
bitration, to the result of which both parties should be bound 
to conform by the interchange of notes, as the most fair and 
honourable mode of settling the question," which Mr. Calhoun 
declined. Mr. Buchanan, on resuming the negotiations after 
the election of Mr. Polk to the Presidency of the United 
States, concluded his communication of July 12, 1845, to Mr. 
Pakenham, by stating that the President would not have 
consented to yield any portion of the Oregon territory had he 
not found himself embarrassed, if not committed, by the acts 
of his predecessors, and that he was instructed to propose the 
49th parallel as before to the Pacific Ocean, offering at the 
same time to make free any port or ports on Vancouver's 
Island south of this parallel, which the British Government 
may desire. 

"This proposal," as justly observed by Mr. Pakenham, in his 
reply of July 29, 1835, " was less than that tendered by the 
American plenipotentiaries in the negotiation of 1826, and 
declined by the British Government. On that occasion it 
was proposed that the navigation of the Columbia should be 
made free to both parties." 

The President of the United States, in his message to 
Congress of the 1st of December, 1845, after briefly review- 
ing the course of the several negotiations, concludes that por- 
tion of his message with these remarkable words : — 

" The civilised world will see in these proceedings a spirit 
of liberal concession on the part of the United States ; and 
this Government will be relieved from all responsibility which 
may follow the failure to settle the controversy." 

Mr. Buchanan had stated to the same effect, at the con- 
clusion of his letter of August 30, 1845, that not " only 
respect for the conduct of his predecessors, but a sincere 
desire to promote peace and harmony between the two govern- 
ments," had actuated the President to offer a proposition so 
liberal to Great Britain. 



256 EFFECTS OF THE I'llOPOSALS. 

** And how has this proposition been received by the 
British plenipotentiary ? It has been rejected without even a 
reference to his own Government. Nay, more ; the British 
plenipotentiary, to use his own language, ' trusts that the 
American plenipotentiary, will be prepared to offer some 
further proposal for the settlement of the Oregon question 
more consistent with fairness and equity, and with the reason- 
able expectations of the British Government.' " 

It could hardly require a reference from Mr. Pakenham to 
the British Government at home, to satisfy him that he should 
at once decline to accept a less liberal offer than that which 
his Government had already declined on two previous occa- 
sions. Surely the meaning of the word *' liberal" must have 
acquired a different acceptation in the United States from what 
it bears in the mother-country, or the notions of what con- 
stitutes " a spirit of liberal concession," must be very different 
on the eastern and western sides of the Atlantic ; for, in the 
usual signification of the word in the mother-country, it would 
be bitter irony to apply such a term to the proposal authorised 
by President Polk, expressly, as alleged, in deference to what 
had been done by Presidents Monroe and Adams. It is an 
offer on the part of Mr. Polk to share a worthless haven with 
Great Britain, when his predecessors have offered to share the 
Great River of the West. 

The offer of Great Britain, when first made by her in 
1824, would have imposed upon her at that time, if accepted 
by the United States, as likewise at the present time, the 
necessity of ultimately breaking up four or five settlements, 
formed by her subjects within the limits that would become 
prohibited ; and which they had formed under the belief of 
their full right, as British subjects, to settle there. "But their 
Government was willing to make these surrenders, for so they 
considered them, in a spirit of compromise, on points where 
the two nations stood so divided," (British and Foreign Slate 
Papers, 1825-26, p. 519;) whereas the United States would 
not be required to abandon a single settlement ; on the con- 
trary, they would retain the fertile valley of the Willamette, 
where their settlers are mostly located. The proposal of the 
United States, on the other hand, would require that Great 
Britain should abandon the majority of her settlements, and 
amongst these Fort Vancouver, the dopot of the Hudson's 
Bay Company, from which fourteen other settlements receive 
their supplies ; that she should resign ihv use of the river, the 



ABROGATION OF THE CONVENTION. 257 

free navigation of which is absolutely necessary for the trans- 
port of outfits and their returns; that she should be precluded, 
not merely from the harbour within the river, but from the 
harbours in Admiralty Inlet, the only really valuable harbours 
on the coast ; that she should give up the agricultural district 
round Puget's Sound, where the fixed population of British 
Canadians are located, and which bears a similar relation to 
the future destinies of Northern Oregon, that the valley of 
the Willamette does to those of Southern Oregon ; and in 
this proposal Mr, Buchanan, in his letter of July 12, 1845, 
" trusts that the British Government will recognise the Presi- 
dent's siticere and anxious desire to cultivate the most friendly 
relations between the two countries, and to manifest to the 
world that he is actuated hy a spirit of moderation. ^^ In re- 
turn Great Britain is to be allowed to retain a district of 
barren territory in Northern Oregon, in which Captain Wilkes 
has officially reported to the United States, that " there is no 
part on the coast where a settlement could be formed that 
would be able to supply its own wants," and which even for 
hunting purposes is so unproductive, that the Hudson's Bay 
Company have found it expedient to lease other hunting 
grounds within the Russian territories ; and this too, when 
the future value of the country will consist, not in its capa- 
bility to supply the fur-trader with the skins of the beaver and 
sea-otter, but in the adequacy of its grazing and agricultural 
produce to support a fixed body of inhabitants, as well as to 
victual the ships of various nations engaged in the China trade, 
and in the fisheries of the South Sea. Harder conditions 
could not well have been dictated by a conquering to a con- 
quered nation as the price of peace, neither do they accord 
with that spirit of just accommodation with which Mr. Rush, 
in 1824, expressly declared the Government of the United 
States to be animated, nor with those principles of mutual 
convenience which it was then agreed on both sides to keep 
in view, in order to further the settlement of their mutual 
claims. 

If the present convention should be abrogated by either 
party, the only object of which, according to the express de- 
claration of the two contracting parties, was " to prevent 
disputes and diflTerences amongst themselves,'' the existing 
condition of common occupancy does not thereby termi- 
nate. Each nation will still be bound to respect the settle- 
ments of the other. The mutual rights and obligations 

12* 



258 rilESENT CONDITION. 

recognised by Great Britain and Spain in respect to each 
other, in the Convention of the Escurial, were recognised 
once and for all. The United States new stands in the 
place of Spain ; she asserts that by the Treaty of Florida she 
holds in her hands all the Spanish title, but her hands arc 
also bound by the obligations of Spain. By the Conven- 
tion of the Escurial, the liberty of free access and un- 
molested trade with the settlements of each other, made 
subsequent to April 1789, was secured to either party : in 
other respects their settlements would carry with them the 
independent rights, which the law of rations secures to the 
settlements of independent powers. Oregon would thus be 
dotted over with the settlements of subjects of Great Britain, 
and citizens of the United States, in juxta-position to each 
other, like the Protestant and Catholic cantons of Switzer- 
land. The tribunals of the United States have decided in 
Washbourne's case (4 John's C. K. 108) and in other cases, 
" that the 27th article of the Treaty of 1793, which provided 
for the delivery of criminals charged with murder and for- 
gery, was only declaratory of the law of nations, and is 
equally obligatory on the two nations under the sanction of 
public law, and since the expiration of that treaty, as it was 
before." So far the recurrence of mutual outrages might be 
checked. Still, such a condition of things would leave open, 
as Mr. Rush observed in 1824, "sources of future disagree- 
ment, which time might multiply and aggravate." It is, 
therefore, for the interest of both parties, that a line of de- 
marcation should be drawn, to prevent the possible conflict of 
jurisdiction. A {"ew square miles, more or less, where the 
entire territory to be shared between the two nations extends 
over a district of more than 500,000 square miles, can form 
but a secondary element of consideration in the question. If 
we look to the original rights of the United States, as founded 
on use and settlement, they point exclusively to the southern 
bank, whilst those of Great Britain point, in a similar manner, 
to the northern. Citizens of the United States first explored 
the southern branch of the Columbia, whilst subjects of Great 
Britain first explored the northern. The flag of the United 
States has been authoritatively displayed on the southern 
bank alone, whilst the British ensign has exclusively been 
hoisted on the northern. Whilst the valley of the Willamette 
in Southern Oregon is cultivated, according to Captain 
Wilkes> bv settlers from other countries besides the Ignited 



BRITISH VOYAGES. 259 

States, the agricultur.il establishments on the Cowlitz River, 
and on the shores of Puget's Sound, in Northern Oregon, are 
exclusively the creation of British subjects. 

Great Britain having expressly declared in 1826, that she 
claimed " no exclusive sovereignty over any portion of that 
territory," it has been thought unnecessary to set out in full 
her original title, as against the United States. It is impos- 
sible in the present day to ascertain how far Drake was au- 
thorised to make discoveries in the South Seas on account of 
his sovereign. We are informed by Stow the annalist, that 
he had obtained the approval of Queen Elizabeth to the plan 
of his expedition, through the interest of Sir Christopher 
Hatton; and the author of "The World Encompassed'' 
affirms that he had a commission from his sovereign, and that 
she delivered to him a sword with this remarkable speech : — 
" We do account that he which striketh at thee, Drake, 
strikes at us." Captain Burney's opinion, however, seems 
most to accord with probability — that he had no written com- 
mission. The Queen, however, on his return, after a pro- 
tracted inquiry before her Council, upon the complaint of the 
ambassador of Spain, approved and ratified his acts ; and in 
her reply to the ambassador's remonstrances against Drake's 
territorial aggressions, expressly asserted, according to Cam- 
den, that as she did not acknowledge the Spaniards to have 
any title by sanction of the Bishop of Rome, so she knew no 
right they had to any places other than those they were in 
possession of, (Cf. supr., p. 161.) Vattel (b. xi., § 74) states 
the law that, " if a nation or its chief approves and ratifies 
the act of the individual, it then becomes a public concern." 
Drake thus appears to have been recognised as an instrument 
of his sovereign ; and though the moderation of the British 
Government has led it not to insist upon Drake's discovery 
of the northwest coast as far as 48°, though it was coupled 
with formal acts of taking possession with the consent of the 
natives, because Great Britain did not follow it up within a 
reasonable time with actual settlements, still that discovery 
has not lost its validity as a bar to any asserted discovery 
of a later period. 

On the other hand, the expeditions of Captains Cook and 
Vancouver satisfied all the conditions required by the law of 
nations for making discoveries and forming settlements. Un- 
less Captain King, the companion of Cook, had published his 
account of the high prices which had been obtained bv his 



260 SETTLEMENTS IN THE COUNTRY. 

sailors for the furs of the north-west coast of America in the 
markets of China, the American fur-trader, as Mr. Greenhow 
terms Captain Gray, would never have resorted to the coast 
of Oregon. But before any trading vessel of the United 
States had appeared off those shores. Captain Cook had 
traced the American coast, from a little above Cape Mendo- 
cino to Icy Cape, in 70° 29' ; whilst Vancouver was des- 
patched in 1791 expressly by the British Government, to 
ascertain what parts of the north-west coast were open for 
settlement to subjects of Great Britain, in accordance with 
the 3d article of the Convention of the Escurial ; and after 
an accurate survey reported, that the Presidio of San Fran- 
cisco, in about 38°, was " the northernmost settlement of any 
description formed by the Court of Spain on the continental 
shore of North-west America." To Vancouver the civilised 
world was indebted for the first accurate chart of the entire 
coast. The important services rendered to navigation and 
science by Vancouver and Lieutenant Broughton, were fully 
acknowledged by Mr. Gallatin in the negotiations of 1826 ; 
yet all these, it is contended by the Commissioners of the 
United States, are entirely superseded by Captain Gray hav- 
ing first entered the mouth of the chief river of the country. 
When Mr. Buchanan, therefore, at the commencement of 
his letter of August 30, 1845, states, " that the precise ques- 
tion under consideration simply is, were the titles of Spain 
and the United States, when united by the Florida treaty on 
the 22d of February 1819, good as against Great Britain^ to 
the Oregon territory as far north as the Russian line, in the 
latitude of 54° 40' ?" and assumes, as a consequence, that if 
they were, it will be admitted this whole territory now belongs 
to the United States ; he avails himself of the ambiguity of 
the term title, to infer that the establishment of a common title 
must lead to the admission of an exclusive title. 

With much more reason might Great Britain have set up 
an exclusive title against the United States, which she has, 
in the spirit of moderation, forborne to do. She might have 
said, " We were entitled by the general law of nations to 
make settlements in this country, as being unoccupied by 
any civilised nation. We were the first civilised nation that 
established a permanent occupation of it, which has never 
been abandoned, by a settlement in the year 1806 on Frazer's 
River. We have since that time, steadily occupied the entire 
country north and south of the River Columbia, as far as the 



RULE OF FARTITIOJf. '261 

sources of Lewis River, where Fort Hall, the most southern 
settlement of the Hudson's Bay Company, supplies shelter 
and food to the wasted and famished settler from the United 
States, on his first entry into the promised land of Oregon." 
She might have said, " Before 1833, American citizens, on 
the testimony of their own countrymen, had no settlements 
of a permanent kind west of the Rocky Mountayis. Even in 
the valley of the Willamette, where Captain Wilkes, in 1840, 
found not more than sixty families, many of them being 
British subjects, and late servants of the Hudson^s Bay Com- 
pany, the first settlements were made by officers of that Com- 
pany, under the encouragement of the Company. It was 
owing to the report of the thriving condition of these farms 
having been carried to the United States by American trap- 
pers, that settlers from that country were led to undertake 
the long and perilous journey across the Rocky Mountains, 
which they would never have survived, had not the British 
settlements preceded their adventurous enterprise, and fur- 
nished them with supplies on their arrival." Yet after an 
indisputable use and enjoyment of this country by British 
subjects for a greater period of time, than that which the 
United States admitted by treaty in 1824, to establish a valid 
title by prescription in favour of Russia, from 60° north lati- 
tude to 54° 40', against their own Spanish derivative title, 
the President of the United States declares, in his solemn 
message, his *' settled conviction that the British pretensions 
of title could not be maintained to any portion of the Oregon 
territory, upon any principle of public law recognised by 
nations." 

The plenipotentiaries of the United States, in their nego- 
tiations with Spain respecting the boundary of Louisiana, laid 
down this principle as adopted in practice by European 
Powers, in the discoveries and acquisitions which they have 
respectively made in the New World, — that " whenever one 
European nation makes a discovery, and takes possession of 
any portion of that continent, and another afterwards does the 
same at some distance from it, when the boundary between 
them is not determined by the principle above mentioned 
(viz., the taking possession of an extent of sea coast,) the 
middle distance becomes such of course." (Cf supr., Ch. 
XIIL) If we apply this rule to the settlement of the claims 
of Great Britain and the United States, either in respect to the 
conflict of their original titles, or in respect to the conflict of 



262 RUSSIAN POSSESSIONS. 

the title of Great Britain recognised in the Convention of the 
Escuritil, with the title of the tJnited States devolved to them 
by the Treaty of Washington, we shall find it confirm the 
reasonableness of the offer made by Great Britain. It was 
ascertained by Vancouver, who had been despatched by his 
sovereign with this express commission, that the northernmost 
part of the not-th-west coast already occupied by Spain, at the 
signature of the Convention of 1790, was the Presidio of San 
Francisco, in about 38° north latitude. Vancouver at the 
same time ascertained that the settlements of the Russians 
extended as far south as Port Etches, at the eastern extremi- 
ty of Prince William's Sound, a little to the south of 60°, and 
thus determined the extent of the common rights of Great 
Britain and Spain under the convention, which Mr. Pitt declar- 
ed, as first Minister of the Crown of England, " he should es- 
teem the Government of his Britannic Majesty highly culpable 
if they neglected to ascertain, by actual survey," (St. James's 
Chronicle, December 15, 1790.) Both the United States, 
however, subsequently to their acquisition of their derivative 
Spanish title, and Great Britain, have recognised, by separate 
treaties in 1824 and 1825, the territorial rights of Russia as 
far south as 54° 40' north latitude, founded on the use and 
enjoyment of the coast by Russian subjects, during the inter- 
vening period between Vancouver's visit and the publication 
of the Imperial Ukase of September 16, 1821 ; so that the 
rights of Great Britain to form settlements under the Conven- 
tion of the Escurial, are thus limited by her own act to the 
parts of the coast between 38° and 54° 40', and the United 
States, by a similar act, have confined their derivative title to 
the same northern boundary. When, however, the United 
States claim to hold in their hands the title of Spain against 
Great Britain, and upon the strength of that title propose to 
make a final partition of the territory hitherto the subject of a 
common occupation, if they would abide by their own rule, as 
solemnly propounded by their commissioners on two distinct 
occasions, the middle distance between 38° and 64*^ 40' be- 
comes the boundary line of course. The extremities of the 
country to be divided are thus marked out by the Presidio of 
San Francisco on the southern side, and by Fort Frazer on the 
northern, and nature seems to have accorded the embouchure 
of the Columbia River, in the latitude of 46"^ 18', to meet the 
conditions of so reasonable a rule, as that which the United 



PROPOSALS OF GREAT BRITAIN. 263 

States then maintained to be grounded on an acknowledged 
principle of international law. 

Such a rule might reasonably be resorted to on this occa» 
sion, as furnishing a solution to the problem of converting the 
common rights of the United States and Great Britain into 
separate rights. The United States, however, might admit 
that the principle was abstractedly sound, but that its applica- 
tion, as proposed, was inadmissible, as their claim commenced 
at 42*^, and not at 38®. It is evident, however, that the de- 
rivative title from Spain as against Great Baitain, if it be ad- 
vanced as the basis of the negotiation, which has been the 
case, cannot assume a different form in the hands of the 
United States, from that which it would have presented in the 
hands of Spain herself : otherwise, the less Spain had ceded 
to the United States, the more the United States would be en- 
titled to claim from Great Britain, which of course is untena- 
ble. But Great Britain has conceded to the United States 
more than the limits which this rule would assign to them, 
namely, the entire left bank of the Columbia River as far as 
the 49th parallel, thereby giving up to them the exclusive 
possession of the Lewis River and the Clarke River, and the 
intermediate territory. 

The general character, however, of the proposals of Great 
Britain cannot be better described than in the words of Mr. 
Pakenham's letter of Sept. 12, 1844 :— 

" It is believed that by this arrangement ample justice 
would be done to the claims of the United States, on what- 
. ever ground advanced, with relation to the Oregon territory. 
As regards extent of territory, they would obtain acre for 
acre, nearly half of the entire territory to be divided. As re- 
lates to the navigation of the principal river, they would en- 
joy a perfect equality of right with Great Britain : and with 
respect to harbours. Great Britain shows every disposition to 
consult their convenience in this particular. On the other 
hand, were Great Britain to abandon the line of the Colum- 
bia as a frontier, and to surrender the right to the navigation 
of that river, the prejudice occasioned to them by such an ar- 
rangement, would, beyond all proportion, exceed the ad- 
vantage accruing to the United States from the possession of 
a few more square miles of territory. It must be obvious to 
every impartial investigator of the subject, that in adhering 
to the line of the Columbia, Great Britain is not influenced 
by motives of ambition, with reference to extension of terri- 



264 FUTURE DESTINIES OP OREGON. 

tory, but by considerations of utility, not to say necessity, 
which cannot be lost sight of, and for which allowance ought 
to be made, in an arrangement professing to be based on con- 
siderations of mutual convenience and advantage." 

Great Britain has advanced in her offers on each separate 
negotiation. Let her make one step more in advance. Let 
her offer to the United States to declare the ports in Ad- 
miralty Inlet and Puget's Sound to be "Free Ports," with a 
given radius of free territory. The advantage which she 
would give to the United States, would far exceed the preju- 
dice occasioned to herself by such an arrangement, and the 
proposal would be in accordance with the principle sanction- 
ed by the 5th article of the Convention of tlie Escurial, which 
guaranteed a mutual freedom of access to the future settle- 
ments of either party for the purposes of trade. If her 
Britannic Majesty's Government should deem it consistent 
with a just regard to the interests of Great Britain, as it 
would certainly be in accordance with the spirit of modera- 
tion which has hitherto influenced her Majesty's councils, to 
make this further offer, and if the President of the United 
States should instruct his plenipotentiary to reject it, the at- 
tempt to effect a partition of the territory by treaty may be 
regarded as hopeless. It will then be best for both parties 
that the Convention of 1827 should be abrogated, and the 
future destinies of the country be regulated by the general 
law of nations. It would be idle to speculate upon those fu- 
ture destinies, — whether the circumstances of the country 
justify Mr. Webster's anticipations that it will form at some 
not very distant day an independent confederation, or whether 
the natural divisions of Northern and Southern Oregon are 
likely to attach ultimately the former by community of in- 
terests to Canada, and the latter to the United States of 
America. When it is remembered that Mr. Calhoun declared 
in 1843, that "the distance for a fleet to sail from New 
York to tlie Columbia is more than 13,000 miles, a voyage 
that would require six months," and that " the distance over- 
land, from the State of Missouri to the mouth of the Colum- 
bia River is about 2,000 miles, over an unsettled country of 
naked plains and mountains, a march, if unopposed, of 120 
days," the scepticism of such as doubt the inevitable absorp- 
tion of Oregon into the United States, seems at least to be 
excusable, 

THE END. 



INDEX 



Adams, J. Quincy, negotiates the 
Florida Treaty, 169. 

Aguilar, Martin d', 53, 58. 

Aiarcon, Fernando, 73. 

Albion, New, 15. 

Anahuac, plateau of, 14. 

Anderson on Commerce, 148, 158. 

Anian, Straits of, said to be discover- 
ed by Cortereal, in 150(), 18. 

Argonaut, the, seized at Nootka, 81. 

Arkansas River, 166, 170. 

Astor, John Jacob, 23, 236. 

Astoria, established in 1811, 24. Trans- 
ferred by purchase to North-west 
Company in 1813, 25, 192, 238. Sur- 
rendered to the United States, 239, 
252. Sub modo, 241. Not a nation- 
al settlement, 237. 

Atlalntic Colonies, 213. 

Barclay, Captain, first descries the 
Straits of Fuca, 19, 62. 

Behring's Voyage, 54. 

Belsham's History of England, 92. 

Bernard, St., Bay of, 155. 

Biographie Universelle, error as to 
D'rake, 30, 36. As to Gali, 54. 

Bodega, Port de la, 42, 58. 

Bodega y Quadra, 56. 

Bracton de Legibus, 113. 

Broughton, Lieut., explores the Co- 
lumbia, 104. Takes possession of 
the country, 105. 

Bulfinch's Harbour, 254. 

Bynkershoek on Discovery, 118. 

Cabrillo, .Juan Rodrig-ues, voyage in 
1542,26. ft > J S 

Caledonia, New, 15. 

Calhoun, Mr , letter of Sept. 3, 1844, 
^ 200. Speech in 1{^3, 264. 

California, peninsula of, discovered in 
1539, by F. de Ulloa, 26. A penin- 
sula, 54. Jesuit missions, 54. A 



cluster of islands, 74. Spanish pos- 
sessions, 167. 

Camden, Life of Elizabeth, 45. 

Canada, limits of, 150. Cession of, 
211. 

Carver, Jonathan, travels in North 
America, 16. First announces a 
river called Oregon, or the Great 
River of the West, 16. 

Cascade Canal, 20. 

Castillo, Domingo de, 26. 

Cavendish, Thomas, voyage of, 32. 

Cavallo, Juan, 77. 

Channing, Dr. 228. 

Charters, 212. Of Georgia, 197. Ca- 
rolina, 196. To what extent valid, 
157. Of the Hudson's Bay Compa- 
ny, 158. Argument from, 159. 

Clarke. See Lewis and Clarke. 

Clarke, River, discovered, 22, 233. 
Source in 45= SO', 190. 

Clatsop, Fort, 22, 234. 

Cliffe, Edward, his narrative, 28. 

Colnett, Capt., 62, 79. Instructions 
to, 204. 

Colorado, Rio, del Occidente, 14. 

Columbia, country of the, 17. Mouth, 
94. Bay, 95. River, 105. Pro- 
gressive discovery of the River, 
108. Proposed as a boundary by 
Spain, in 1819, 165. Exploration by 
Gray, 243. Northernmost bank, 
191. Course, 198. Extent of val- 
ley, 198. 

Columbia, merchant ship, 16, 62. Log 
book, 101. 

Congress, documents of, 208. 

Contiguity, doctrine advanced by Mr. 
Gallatin, 218. A reciprocal title, 127. 

Convention of 1818, l45, 178, 241. Of 
1803, not ratified, 251. Of 1806, 
ditto, 147. 

Conventions, transitory, 129. Mixed, 
133. 



INDEX. 



Cook, Captain, instructions to, 15, 58. 

Discovery of Nootka, 116. 
Coronado, Vasqiiez de, 153. 
Cortereal, Caspar de, 18. 
Crozat's grant ol' Louisiana, 155. 

Davis, John, the navigator, 44. 

Descubicrta and Atrevida, voyage of 
the, 66. 

Discoverj'^, title by, 116. Not in the 
Roman law, 115. Conditions of, 
121. Progressive, 122. Requires 
Notification, 200. An inchoate act 
of sovereignty, 2.30. 

Dixon and Portlock, 61, 76. 

Domain, eminent. 111. Usefi 1, 111. 

Drake, Sir G., his voyage, 27. French 
account, 30. Knighted by Queen 
Elizabeth, 39. Limits of voyage, 
40. His discovery maintained by 
British negotiators, 186. 

Duflot de Mofras, 93, 160. 

Duncan and Colnett, 62. 

Elizabeth, Queen, reply toMendoza, 

118 Speech of, 45, 259. 
Escarbot's Histoire de la Nouvelle 

France, 167. 
Escurial, Convention of the, 86, 201, 

244 Mr. Greenhow's view, 90. 

British rights under, ascertained, 

262 
Eyries, M., error as to Drake, 35. 

Gali, 52. 

Factories, or comptoirs, 206. 

Falconer's treatise on the Mississippi, 
155. 

Family Compact, 86. 

Felice and Iphigenia, 77. 

Ferrelo, Bartholeme, 27. 

Flag, on the, Dr. Chaning, 228. Mr. 
Gallatin, 230. 

Fletcher, World Encompassed, 28, 
35. Manuscript notes, 38. 

Fleurieo, 30, 47. 

Florida Treaty. See Washington. 

Fonte, Bartholeme, 70, 171. 

Francisco, Port San, the northern- 
most possession of Spam, 42, 260. 

Frazer's Kiver, 20. 

Frazer's Lake, 21. Fort, 261, 262. 

Fuca, Juan de, Strait.>< of, 19. Dis- 
covery claimed bv Martinez, 56. 
Discovered by Barclay, 62. Story 
of, 66. Not mentioned in Spanish 
archives, 69. Spanish claim, 171. 

Fur Company, American, 23. Mis- 
souri, 23. Pacific, 23. 

Fur trade, 18, 



Gali, Francisco, .50, 54, 

Galiano and Valdes, 19. See Sutil 
and Mexicano. 

Gallatin, Mr , his doctrine of discove- 
ry, 109. Letter to Mr. Astor, 194. 
His counter-statement in 1826, 208. 

George, Fort, 143. 

Georgia, New, 15. 

Gray, Caj)tain, first explored the 
mouth of the Columbia River, 62. 
Crosses the bar, 101. Extent of his 
researches, 108. 

Hakluyt, Collection of Voyages, 27. 

Hanna, Captain, 77. 

Hanover, New, 15 

Hearne, journey of, 58. 

Heceta, voyage of, 56. Inlet of, 57, 

94. Discovery of the Columbia 

River, 95, 243. 
Hennepin, Father, 157. 
Henry, Mr., established a trading post 

on the Lewis River, 23, 236. 
High lands, territorial limits, 196. 
Horn, Cape, discovered, 54. 
Hudson's Bay Company, 20. Title, 

125. Territory, 213. Boundaries, 

147. 
Humboldt, Alexander von, 46, 233. 

Iberville, D', 155. 

Illinois, the, annexed to Louisiana, 
156 Nation of, 210. 

Ingraham, Joseph, pilot of the Colum- 
bia, 81. 

Jefferson, President, letter on Lou- 
isiana, 146, 160. 

Jeflferys' America, 154, 161, 210. 

Jessup, General, 179. 

Jesuit missions, 54. 

Johnson, Dr., Life of Sir F. Drake, 
46. 

Jurisdiction, maritime, 184, 173. 

Kerlet's memoir on Louisiana, 164. 

Kendrick, Caj)t , 63, 81. 

King, Capt. James, first suggests a 
trade in furs with north-west coast 
of America, 18, 60. 

King George's Sound Company, 76, 

Klubcr, Droit des Gens, 112, 117. 

Kooskooskee River, 22. 

Lake of the Woods, 145. Rainy, 

149 Red, 149. Travers, 149. Ab- 

bitibbe, 149. 
Law, international rules of, at Treaty 

of Washington, 172. 
Le-.>is and Clarke's expedition, 22. 

Encampment on south bank of 

River Columbia, 2;J5. 
Lewis, or Snake River, 22. 



INDEX. 



Ill 



Liberties distinct from rights, 137. 

Lorenzo, Bay of San, 55, 59. 

Louisiana, limits of Crozat's Grant, 
155. Jefferys' America, 1.54, 210. 
Declaration of France in 1761, 212 
Cession of, 147. Western bounda- 
ries, 158. Sold to the United 
States, 157. Extent of, 210, 212. 

Mackenzie, Alexander, first crosses 
the Rocky Mountains, 19. 

Maldonado, pretended voyage, 65. 
The author a Fleming, 66. 

Maps, of Ortelius and Hondius, 45, 
74 Of the 16th and 17th cen- 
tury, 74. Difficulty from incorrect, 
150. Questionable authority of, 
161. Melish's, 166. Inaccuracy of, 
212. 

Maquilla, or Maquinna, 79. 

Marchand's Voyage, 47. 

Martens, Droit des Gens, 117. 

Martinez at Nootka, 80. 

Matagorda Bay, 155. 

Meares, 61. Sailed in the Nootka, 77. 
In the Felice 78, 95. Memorial to 
Parliament, 82. Log book, 97. 

Mendocino, Cape, 27. Furthermost 
known land, 45. 

Mississippi, sources of the, 146. 
Comj)any, 156. Discovered by 
Hernando de Soto, 153. Discover- 
ed by Spain, 153, 197. Explored 
by British subjects, 154. Free 
navigation of, 195. 

Missouri Fur Company, first estab- 
lishment of citizens of United 
States on the west of the Rocky 
Mountains, 23. 

Monroe, President, declaration of, 
178. 

Mouson's, Sir W., Naval Tracts, 44. 

Mountains, Snowy, 165. 

Multnomah River, 166. Incorrectly 
laid down, 166. Proposed as a 
boundary by Spain, in 1319, 165, 
170. Sources, 190. 

Natchitoches, 164. 

National flag, 226. Protection of, 193. 

Mercantile, 227. Sovereign, 228. 

Mr. Gallatin's letter, 2^.0. Dr. 

Channing's pamphlet, 228. 
National ship, Mr. Rush's view, 184 

Mr. Buchanan'.-? view, 226. 
Negotiations in 1818, 1 14. 
New France, extent westwardly, 161, 

210. 
New Mexico, extent of, 171. 
Nootka Sound, 73. Discovery of, 1 16, 

British colours hoisted at, 79. De- 



livered up to the British, 92. Con- 
troversy^, 119. British settlement, 
203. 

Nootka Sound Convention. See Es- 
curial. Mr. Pitt's view, 247. 

North-west Company established, 20. 
Their first settlement west of the 
Rocky Mountains, 20. 

Occupation, title bj'. 111. Distinct 
from occupancy, 114. 

Ohio River, 159. 

Okanegan River, 24. 

Onis, Don Louis de, 164. 

Oregon, or Oregan River, so called 
by Carver, 16. 

Oregon Territory, extent of, 17. Pre- 
tensions of the United States in 1818, 
142. First notice of claim, 147. 

Pacific Fur Company, 23. Dissolu- 
tion of, 25, 19^. Not chartered, 
192 

Panuco, the northernmost settlement 
of Spain on the Gulf of Mexico, 
154, 176. 

Partition, rule of, 261. 

Patagonians, 39. 

Perez, Juan, voyage, 55, 116. En- 
trada de, 55. 

Perouse, La, 60. 

Pichilingue Bay, 73. 

Poletica, Chevalier de, 179. 

Pope Alexander VI , his bull, 27. 

Pre-emption, right of, 177. 

Prescription, title of, 124. 

President Polk's Message, 255, 

Pretty, Francis, 28. JNot the author 
of the Famous Voyage, 32. 

Purchas, Pilgrims of, JU. 

Racoon, sloop of war, 25, 239. 

Rio Bravo del Norte, 171. 

Rivers, appendages to territory, 173, 

195. Common use of, 126, 176, 195. 

Mr. Wheaton on, 195. 
Rocky Mountains, 14. 
Rolls Court, 1.31. 
Rush, Mr , 180, 241, 251, 253. 
Russia, establishments on north-west 

coast of America, 60, 262. Claims 

on north-west coast, 120. 
Russian American Company, in 1799, 

200. 

Salle, De la, 154, 197. 
Santa Fe, 170. 

Sea coast, discovery of, 172. Posses- 
sion of, 196. 
Servitudes, permanent, 134. 
Settlement, title by, 1^. Jurisdiction 




INDEX. 



of, 172. Conterminous, 175. Not mere 

trading stations, 202. Not factories, 

206. Intermixed, 218. Priority of, 

221. 
Sierra Verde, 13, 166. 
Silva, Nufio da, his narrative, 28. 
Schoell's Traites, 90, 92, 147. 
Soto, Hernando de, discovered the 

Mississippi, 171. 
South Carolina, laws of, 227. 
Spain, claims to the north-west coast 

of America, 16S. 
Stow, the Annali&t, 43. 
Stowell, Lord, on rivers, 106. On 

discoveries, 121, 200. 
Sutil y Mexicana, voyage of, 48. 

Tacoutche - Tesse River, held by 
I^e-wis and Clarke to be the Colum- 
bia, 19, 232. 

TchiricofF's voyage, 54. 

Territory in use, 221. 

Texas, boundaries of, 171. 

Thalweg, 176 

Thomson, Mr. David, the astronomer 
of the North-west Company, de- 
scends the north branch of the Co- 
lumbia River, 21, 24, 171, 2:3:3. 
Determines the latitude of the 
sources of the Mississippi, 146. 

Tipping, Captain, 61, 70. 

Title by Occupation, 111. Discovery, 
115. Sea coa.st, 172 Settlement, 
124. Prescription, 124. Convention, 
129. 

Tonquin, ship, destroyed by the In- 
dians, 24. 

Treaty of Utrecht, 84, 144, 148. Paris, 
of 180:?, 147. Paris, of 1763, 149. 
Ryswick, 157. Washington, 173. S. 



lldefonso, 157, 162. The Escurial, 
8(>. 201. Ghent, 141. Family Com- 
pact, 86, 92. Paris, of 1783, 133, 
146, 151. Of 1794, 146. 
Treaties terminable by war, 135. 
Sometimes contain acknowledg- 
ments of title, 136. 

Ukase of Russia respecting the north- 
west coast, 178, 

Ulloa, Francisco de, 26, 54, 72. 

United States, the Pre>ident's plan as 
to the Pacific Ocean, 169. 

Use, innocent, 128. 

Usucaption, title by, 124. 

Utrecht, Treaty of, 211. Commis- 
sioners under, 148. 

Vancouver, Capt., 18. Instructions, 
98. Names C. Orford, 9S. Ob- 
serves Heceta's River, 100. Vin- 
dicated against Mr. Greenhow's 
charges, 103, 107. 

Vattel on Occupation, 173. On Dis- 
covery, 193. On Prescription, 125. 

Vicinitas of the Roman law, 126. 

Viscaino, Sebastian, 54. 

Wabash River, or Ouabache, 156. 

Washington, Treaty of, cession under, 
172, 180. Object of Spanish conces- 
sions, 170, m. 

Wheaton on Discovery, 118. 

Wilkes', Capt., expedition, 74. 

Willamette, settlement on the, 256, 
259. 

Webster, Daniel, 2&4. 

Wolffii cTus Gentium, 112. Institu- 
tions du Droit, 113, 121. 

Woods, Lake of the, 145. 



